But seven years later, in 2008, she joined a unanimous Court in giving the police latitude to arrest and search drivers even where the law authorized nothing more than a summons. A Virginia man, taken into custody for driving on a suspended license, was personally searched—standard procedure incident to an arrest—and crack cocaine was found. He lost his argument to have his arrest declared illegitimate and the drugs excluded from evidence.42
Traffic stops and car searches have been among the most confusing and difficult areas for the courts. Case law holds that warrantless searches accompanying arrests are justified for two purposes only: either to preserve evidence or to protect officers from hidden weapons. But these are fragile limits on police power, drawing support from only a slim majority of five justices in 2009. They barely ruled for an Arizona man who had turned into his driveway, parked, gotten out, and was then arrested for driving with a suspended license. After he was securely handcuffed and locked in a patrol car, the officers searched his vehicle, where they found a jacket with crack in a pocket. The five in the majority found the obvious: that the detainee could not have gained access to any gun that might have been in his car, and that the vehicle could not have contained evidence relating to the cause of his arrest, the suspended license.43
The usual characters who claim Fourth Amendment violations are not sympathetic types, because their crimes seem clear: They’ve been caught red-handed with drugs or guns or stolen goods and are seeking to suppress the incriminating evidence. They generate little popular support, unlike Gail Atwater.
She was just a “soccer mom” trying to find a lost toy. Fine, upstanding citizens could identify with her, since she lived within their circle of decency. Yes, she showed a lapse of judgment about safety, but she was no hardened drug dealer armed with deadly weapons. Had her arrest led to a vehicle search that uncovered guns and narcotics, she would have earned condemnation rather than the compassion she won as the mildly careless mother, handcuffed and dragged away in front of her small children.
But the constitutional question would have been the same. When the Bill of Rights is violated, it’s usually hard to mobilize public concern, because the most obvious victims are the least admirable—accused criminals whose cases become the means through which courts regulate police behavior by applying the Constitution. And the resulting constitutional interpretations apply to everyone. The system, then, binds together the miscreants and the righteous: The most virtuous among us depend on the most villainous to carry the torch of liberty, for when the courts allow a criminal defendant’s rights to be violated, the same rights are diminished for the rest of us. As the bootlegger Carroll, the pistol-packing Terry, the gun-toting Wardlow, the drug-pushing Ross, and the pothead Acevedo lost some of their Fourth Amendment protections, so did we all.
Most citizens who are searched without giving voluntary consent don’t go to court for the simple reason that they are entirely innocent. No evidence is found, and so—assuming the police are honest—no charges are brought against them. Yet they have been violated fundamentally. Unless they sue the police for damages, which is extremely rare and more rarely successful, their experiences add up to an invisible record across the United States of countless unconstitutional searches.
Each night, the Power Shift leaves dozens of such victims in its wake. Rushing through blocks and courtyards, the officers consider the entire shift a success if a single gun is found, even when numerous innocents are stopped and frisked, their cars searched, their dignity assaulted, their zones of privacy invaded for naught. If a ballplayer batted with such a low average—one for thirty in this typical shift—he wouldn’t be a ballplayer for long. But the officers don’t keep track of the fruitless searches, and neither does anyone else. Instead, they reason that “it discourages them from carrying a gun,” Neill explained. “If you keep ’em pressured, they won’t bring the guns outside,” and a gun left home means a few more minutes to cool off before using it. The judicial process, it seems, is only incidental to crime prevention.
On this June night, as Sergeant Neill got ready to take his men into the streets, he sat typing in a bare cubicle at the First District station house. To guard his privacy, he used his personal laptop instead of a department computer: He didn’t want the police department snooping into his files, he explained, or observing when he logged on and off. He wanted to compose his response to a complaint, a Form 119, without being monitored.
Neill was peppered with complaints. He seemed miffed at this one but tried not to let it show much. It was from a driver whom he had pulled over for having tinted windows and a device that made the sound of a police “sirene,” as Neill spelled it (pronouncing it “sireen”). Neill had to justify frisking the driver, which he did by reporting that the man had seemed nervous enough to make Neill think there might be a gun. There wasn’t.
Nothing much seems to result from such complaints. Officers treat them like minor irritants, although when they’re introduced into evidence—as judges occasionally allow defense attorneys to do—they can discredit police witnesses, especially among black jurors from poor neighborhoods where they’ve seen cops in action. Neill had lost some convictions as a result, but he usually reacted with that standard police philosophy: “We’ll get him next time.”
It was close to 10 p.m. when Neill folded up his laptop, took off the bright red Hawaiian short-sleeved shirt he was wearing, put on a uniform shirt, and walked out to the nearby parking lot, empty at this hour except for three marked cars and six officers hanging around waiting for him. Neill went off to get a squad car of his own, and we began with his favorite starting point, the alley between K and L Streets SW, which ran into a courtyard behind some two-story apartment buildings.
As the officers swept in from two directions, the residents barely reacted, accustomed as they were to the invasions. It was a warm Wednesday, and lots of folks were outside, some sitting in tiny fenced-in patios or yards, a few girls looking pretty high while dancing to music from a boom box. The smell of pot was in the air. Neill frisked one young man, and the rest of the squad spent a few minutes sweeping the ground with the beams of their flashlights. They came up with a small potato-chip bag containing marijuana, but no owner. A man so huge he was oozing out of his folding chair caught Neill’s eye. “The big fat guy sold me drugs in 1994,” he told me, and they nodded politely to each other as the sergeant strode by.
We headed toward Benning Road, and on the way I asked Neill what he thought people felt when he searched them and found nothing. “Relief,” he answered. “You’re not dealing with people who go to church.” But you are dealing with people who may get onto juries, I noted.
On H Street and North Capitol, we came up behind a vehicle that seemed designed to command police attention: a dark sedan with tinted windows and plates that read “RATBABY.” Neill radioed the squad car ahead, which stopped and blocked him. Two black men were in the front seats, the driver chatting on a cell phone. Neill quickly had them out of the car and frisked. “I got nothing in there, so you can search it,” he later quoted the driver as saying. Nothing was found.
Cruising into an alley off H and Sixth Streets NE, the lead squad car doused its lights. “We call it the stealth mode,” said Neill. “We ain’t supposed to do that.” He pulled up next to a gray sedan that was parked illegally, the driver sitting behind the wheel, which was secured with a locked antitheft bar.
The parking violation gave Neill and his colleagues the legal hook they needed for an encounter, a gaze through the windows, a conversation that they always hoped would get them inside the car. So, a little charade began. The driver, a black man in his thirties, defended himself in tones of sincerity against the grave parking violation that had brought seven officers in four cars swooping down on him, mobilized to stamp out this parking scourge that afflicts back streets. He claimed that the car belonged to his mother, who lived in the row of houses along the alley. (A young black man under the siege of the gun squad often seems to
think that he’ll inspire sympathy by noting that he has a mother—all the better if he can convince the officers that the little old lady who brought him into the world is actually the owner of the decal-covered SUV he’s driving, with beads swinging from the mirror and a woofer that sounds like the muffled thud of distant artillery when the tinted windows are closed.) “We always park right here,” the driver declared in a charming confession, as if his record as a serial parking offender would end the surreal scene. But Neill asked the man to get out of the car, frisked him, then teamed up with another officer to search the vehicle. “I used to have a truck, parked it right here,” the driver continued, playing along. Then, as if to underscore his naïve ignorance of the momentous crime, he even called his mother on his cell phone so the police could hear his lilt of innocence. “Mama, I’m out back. Police here. They say we can’t park out here.”
Later, the cops had a laugh about this big man calling his mama. The man may have had his own laugh about disarming the cops with deference. He’d played the game, letting them think they’d fooled him with concern over an infraction they didn’t even give him a ticket for. Had the officers gone on to find a weapon, they would surely have written a parking ticket to make the case legitimate.
“Did you say they could search?” I asked him. I hadn’t heard him give consent. He looked baffled by the question and didn’t answer. “He gave permission,” Neill said later. “He was real nervous.” Neill seemed to think that unless a black man has guns or drugs, he shouldn’t be nervous when surrounded in a dark alley by seven cops, most of them white. But this unreasonably nervous man had no guns or drugs, and I came out doubting that Neill could really tell. The Power Shift’s averages in finding guns were probably no better than what would have turned up by doing random stops of males between eighteen and forty-five in these dangerous neighborhoods. Random stops were not constitutional, however; a pretext was required, often of the slimmest sort.
And so it went late into the evening: Three men frisked at G and Seventh Streets NE; “All right, Gee,” one said in assent. A lone man frisked in an alley adjacent to a playground. Three men who bolted and ran safely into a house. Another running man, whom Neill tried to catch by climbing nimbly over a locked chain-link fence, but who escaped through a warren of alleys and courtyards. Several guys walking up an alley, stopped and frisked. Three men on a stoop at Twelfth and I Streets NE, frisked while Neill chattered at them: “Wha’s up, fellas? Got any guns or drugs? We searchin’ for drugs and guns.”
“Go ahead,” one said.
And then, the first checkpoint of the night, a “pop-up roadblock,” as they called it. Prompted by a Cadillac Escalade with no front tags, the squad decided to stop everyone, so Neill parked in the middle of H near Twelfth NE. “Let’s get ’em all,” he radioed to his men. Straight-faced, they pretended that their checkpoint was aimed at checking licenses and registrations, since the Constitution, as interpreted by the Supreme Court to date, did not permit roadblocks for the Power Shift’s purpose of finding guns.
“Get out, man,” Neill told a driver, then frisked him. Two cars were being searched at once, then another and another. When Neill couldn’t find the lever to open a trunk, the driver, leaning on the trunk in frisk position, gave him a clue: “It’s in there. You want me to show you?” Neill answered, “Yeah, come around.” And the driver obliged.
The owner of another Cadillac SUV said a search was OK, then got out of the vehicle and was surprised when he was patted down. “Checking me, too?”
“You ain’t got a gun, do you?”
“No.”
“We don’t want anybody gettin’ shot up.”
After five minutes and a couple of tickets written, the roadblock vanished, the nation’s capital having been kept safe from unlicensed drivers. No guns yet tonight.
As we drove into darker, narrower streets, Neill got a radio call. A man was running through an alley. For the first time that night, the sergeant grabbed the shotgun from between our seats, jumped out, and gave chase. Around the corner, cops surrounded a black teenager, tall and lanky with long hair and glasses. A black officer said he’d seen him throw a plastic sack containing ten ziplock bags of weed. “I didn’t have anything,” the kid insisted.
“I was right there,” the cop came back. “You didn’t, my ass.” When another officer said that he had also witnessed the young man throw the marijuana, the kid’s denials dissipated.
“We don’t always lock ’em up for ten bags,” Neill explained to me. “We’re looking for guns. That kind of shit just slows us down.”
So, instead of subjecting the youngster to the judicial system, the Power Shift exacted its own kind of justice by confiscating the weed and giving the criminal a hard time. A good defense attorney can often sow the seed of reasonable doubt that the drugs found on the ground actually belonged to the defendant and that the cop is truthful about seeing them tossed. So a trial is not always worth the time and the gamble.
A young white officer took the teenager’s license to a squad car with a computer uplinked to the WALES database. “No record,” he called out.
“Anything in your house you want to surrender to the police?” asked Neill.
“No.”
“We gonna take you home, tell your mama what you been doin’.” She was at work at the post office, the kid said. Neill asked for her cell number, got it, and called, but she didn’t answer. “Today’s your lucky day,” the sergeant told the young man. “I see you again, you’re goin’ to jail.”
Another officer chimed in. “You can’t be goin’ to jail. You like sex, man? They like sex, too. They like somebody fresh like you.”
“Yeah, that long hair to hang on to,” a third cop added.
Having made the threats, scared the young man, and taken the pot, the Power Shift moved on. They looked through a car where they thought they smelled marijuana—thereby giving them probable cause to search—and found nothing. They had a few bizarre encounters along Benning Road with residents who had been smoking something stronger, it seemed, for they mouthed off incoherently as the squad frisked them and searched their cars. One young woman, babbling noisily, was taken aside gently by an African-American officer who quietly calmed her down. “That’s the guy we call the Reverend,” said Neill. Every police unit ought to have one.
In Iraq, Neill had learned a technique he brought back to Washington: how to set up roadblocks by staggering boulders in the road to force cars to slow and weave. This he usually did near RFK Stadium in the early morning hours when people drove home from clubs. “This is where the Badlands meet America,” he told me.
Tonight, though, the squad used their cars instead of rocks, leaving just enough space along the one-way, three-lane road to allow vehicles to squeeze through. They parked one cruiser facing the wrong way on a ramp, ready to give chase if anybody tried to avoid the checkpoint by backing up. That happened three times on this shift, but only once did two officers race for their car and roar after the offender, who followed normal procedures in this part of town: When you have drugs or guns in your vehicle, and sirens and lights materialize, you do not obediently pull over; you floor it and hope to outrun the cops, which this driver managed to do.
Working efficiently, the Power Shift stopped most cars long enough to go through the act of checking licenses and look over the driver and passengers and decide whether to seek consent for a search. An older man, possibly Latino, was waved through, as were nearly all the women. Only black men from their late teens to their late forties were targeted. Vans or SUVs that seemed fancy, and men with cornrows or braids or baggy clothes were scrutinized closely. Neill said he was looking for people who betrayed nervousness by glancing around inside their car, who answered evasively, who couldn’t find their licenses because of the jitters.
Officers engaged in brief conversation, mostly monologues: Got any guns or drugs, man? Mind if we search? Get out of the car, man. Don’t want anybody to get hurt. “Got anything i
n the vehicle I should know about?” one officer asked. “Maybe a little bit of weed?” Then came a quick pat-down, a search of the passenger compartment by two or three officers, who rarely went into trunks, and a wave and a goodnight.
When Neill explained that they were trying to get guns off the street, one driver pulling away cautioned, “Y’all be careful, man.” It sounded more like a friendly warning than a threat. Another driver turned out to be a fireman, which reminded Neill of the time they got a gun off a Metro bus driver. A black woman who recognized the sergeant shouted, “Gee! Give me a hug!” and Neill did, through the window. “I love ya, baby!” she yelled gleefully as she drove away, and he smiled sheepishly.
One driver had an open can of beer and a blackjack, its lead cylinder covered in dull black leather. The cops poured the beer onto the ground and confiscated the blackjack. Another had a bag of marijuana in the front seat, seized as well. The squad didn’t bother making arrests or writing tickets, though. They were highly focused on their mission.
About a dozen cars were searched thoroughly in forty-five minutes, all after their drivers had given consent.
“Mind if I search?” a white sergeant asked a black driver.
“No.”
“I appreciate it,” said the sergeant, and then, after he poked his hands around and beneath the front seat only, not the back, he waved the man on with a “Have a good night.”
The Rights of the People Page 11