Then a dark sedan came up swiftly, as if trying to slip past the checkpoint. Neill saw the way he was driving and signaled him to a stop. Their conversation was soft, mumbled, and I was too far away to hear it. Neill’s reconstruction later was typical. When the driver asked the reason for the stop, Neill answered that they were checking licenses. The driver couldn’t find his, and this was interpreted as a sign of acute nervousness. “Can I search?” Neill remembered asking. “Sweat starts dripping off him. He kept looking down.” He gave permission, though.
Neill said he’d then got the man out of the car and, when he patted him down, felt a broad belly belt fastened with Velcro, the kind a weight-lifter would use. The belt was stiff and hard and might be expected to conceal a gun. Neill said he’d felt a tip of the handle above the belt, and pulled it out—a nine millimeter Luger. Neill beckoned me closer as the man was handcuffed, and I saw another officer undo the belt. Out fell a magazine clip full of ammunition.
The driver was practically crying, and he flashed that badge of decency, saying, “I got a job at Pepco,” the local electric company. He was coming from a workout, trying to lose weight, he said. “I ain’t hurt nobody, brother, never in my life.” But the computer in one of the squad cars listed him with a prior conviction. Pepco job or not, Neill said to me, this man “can’t stop being a thug.”
They had gotten their gun for the night. It was 1:45 a.m., Neill had a couple of hours of paperwork to do, and other officers had court appearances the next morning, which meant little sleep and lots of overtime. So we stopped for gas at a Sunoco station, went to a 7-Eleven for some coffee, then cruised back to the First District headquarters.
Hardly any of the searches had been justified by probable cause or even by the lesser standard of reasonable suspicion. The Power Shift had relied almost entirely on citizens’ acquiescence. While officers combed through vehicles, I asked drivers who were sitting on curbs or leaning on trunks whether their permission had been requested. Some looked blank, as if they hadn’t known that a policeman had to ask and that a citizen could say no.
OBTAINING CONSENT
In 1973, the Supreme Court ruled six to three, in Schneckloth v. Bustamonte,44 that the police did not have to inform people of their Fourth Amendment right to refuse a search, unlike the Miranda warning required before waiving the Fifth Amendment right against self-incrimination. In dissent, Justice Thurgood Marshall accused the majority of allowing “the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights.”
An uninformed public removes a burden from police work, and when a lack of knowledge is combined with a coercive atmosphere, the searches move along rapidly. Even if you know you can say no, you’ve got to make a quick calculation about whether or not to exercise your right to refuse. When you’re a black man surrounded by cops late at night, can your consent really be “freely and voluntarily given,” as the case law requires?
It seemed easy to induce the citizens of the nation’s capital to relinquish one of the Constitution’s key liberties. Those drivers who told me that they had been explicitly asked gave a simple reason for consenting: “I ain’t got nothin’ in there,” as one man said. It was his version of a response typical of a large segment of Americans who don’t mind surveillance because they have “nothing to hide.”
If I hadn’t seen this massive apathy about rights with my own eyes, I might not have credited the claims of another seasoned sergeant, J. J. Brennan, who still, after over thirty-five years on the force, had a slight melody of surprise in his voice as he told of drug couriers letting him search their suitcases—and they certainly had something to hide. It happened in Washington, D.C.’s Union Station, where Brennan had set up a drug interdiction unit of seven detectives in the late 1980s.
With the advice of an Amtrak police officer who had run a similar unit in Dade County, Florida, Brennan developed observation and interview techniques that narrowed the flood of passengers walking through the station to a trickle of potential dealers and couriers. He read the relevant Supreme Court opinions and figured out how to gain consent without being coercive.
Coercion is often in the eye of the beholder, and the Court usually looks through the eyes of the police. As Justice O’Connor recapitulated the case law as of 1991, “The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.… The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” She was writing the majority opinion in Florida v. Bostick, which extended that police authority to a passenger on a bus that was about to depart. While he couldn’t walk away without missing his transport and abandoning any luggage stowed below, the Court found that he could still have rebuffed two officers’ request to search a bag, where cocaine was discovered. In other words, as long as a person is free to ignore the police and go about his business, the questioning is just a conversation and not a “seizure” under the Fourth Amendment.
There are few areas of the law where the sterile abstractions of the Supreme Court seem more out of touch with reality. The majority’s notion that a passenger could feel perfectly free to say no, while confined in his seat by two armed policemen blocking the aisle during a drug sweep, seemed absurd to Justice Marshall, whose career as a civil rights lawyer had given him plenty of opportunity to understand the dynamics of police bullying. The passenger had only two undesirable options, Marshall noted in his dissenting opinion: to push his way past the policemen and leave the bus, or: “He could have remained seated while obstinately refusing to respond to the officers’ questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers’ suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger’s refusal to cooperate.”45
Sergeant Brennan pictured himself as steering well clear of coercion in Union Station. “You’re walking on a very thin line,” he conceded. But he knew the law cold, and most of his subjects did not, and that gave him an edge as he approached railroad passengers who fit his profiles of likely suspects.
There were indicators of manner and dress. “It was known that females carrying drugs and males carrying drugs would do away with their jewelry,” he said. “Jewelry was a big thing—gold chains and bracelets, flashy. Drug dealers were flashy back then, so they were dressin’ down” to look inconspicuous.
His officers ignored passengers who were met by others, since couriers didn’t hand off the goods in public. Women who stopped to gaze into store windows were also ruled out. Brennan’s attention went instead to any woman who was so focused on getting on her way that she breezed past shops in the station without so much as a glance. “When have you ever known a woman to pass by a clothing store and not take a look?” he asked. It seemed a flimsy clue, a profile that might also fit a corporate lawyer on a tight schedule.
Once someone was chosen for an approach, the detectives tried to be low-key. In plain clothes, they wore no police emblems, no jackets saying POLICE. When they introduced themselves as police officers, “we showed them our identification with our picture on it,” Brennan noted. “We thought it was more personable than drawing a badge on them.” Then the conversation would begin.
“We’d ask several questions: Where you coming from? You know. Who you going to see? How long you gonna be here? Can I see your train ticket? We’d ask for the ticket, and they’d show us the ticket; we’d look at it. If I held on to that ticket, that means I detained the person,” for which he’d have to have probable cause and advise them of their Miranda rights not to answer. “So I’d take a
quick look at the ticket, see where the travel was from, New York to Washington, D.C., being round trip, paid for by cash, stuff like that. And I’d give the ticket back.”
As Brennan knew, having read the Supreme Court ruling in Florida v. Royer, holding the ticket too long, the way narcotics detectives at Miami International Airport had done in 1978, the passenger would have been effectively “seized” without probable cause, and any evidence discovered as a result would have been inadmissible. The Court had thrown out the Florida conviction after detectives had taken a man’s ticket and driver’s license, had led him to a small room for questioning, and had then obtained reluctant consent (not voluntary, given his unlawful confinement) to open his suitcases, which contained marijuana.46
Like Neill in the street, Brennan in the station would watch people’s reactions when he asked their names, inquired into their reasons for travel, and the like.
A lot of drug dealers wouldn’t look him in the eye, Brennan learned. “They would be talkin’ to you but kind of lookin’ away from you. Or, they’d be gazing for your backups, you know, trying to look around and see whether or not you had other people with you. Or, possibly, looking for escape routes: If I decide to take off, which way do I go? And then you’d look for the sweating. A lot of times they’d break out in a sweat. Or trembling. You’d see a twitch or you’d see a tremble, or movement of the feet. You know how when you get nervous you can’t stand still? And even the breakup of the speech, when they talk. You ask them a certain question, their speech breaks up.”
A quasi-scientific school of study, using facial tics as lie detectors, has been promoted by Mark Frank, a former bouncer who came to believe he could tell by looking at people’s faces whether they were carrying guns, false IDs, or hot tempers. Now a psychologist at the University of Buffalo, he trains investigators to watch for fleeting “microexpressions” that indicate fear: eyebrows moving up and together, or a muscle that contracts to stretch the mouth, for example. So keen is the Department of Homeland Security to divine emotions this way that it launched an airport security project to detect body language and granted Rutgers university $3.5 million to design computer software that could read faces more reliably than veteran cops like Sergeant Brennan.47
But Brennan felt he was pretty good at it, and he found that funny things often happened in Union Station when he asked for identification. “You’d be surprised how often there’s no ID, no ID at all,” Brennan said, because the passenger had given a false name to begin with and didn’t want to produce a contradicting document. “Who travels anywhere on any type of transportation and don’t have a driver’s license or a wallet with an ID in it? ’Cause you’ve got your money, your billfold. We got a lot of that.
“So, when I got to a point where I felt comfortable that this whole conversation is a bunch of horseshit, I’d tell him, ‘I’m Sergeant Brennan. The reason I’m here at the station is to stop drugs coming into and through the city. Are you carrying any drugs in your bag?’ Basically we were focusing on drugs at that time, not weapons. I’d always leave it at drugs. So, ‘Are you carrying any drugs in your bag? Are you carrying any drugs on your person?’ Always the answer would be no, right? Except for one or two cases, they said yes. But then I’d come right out with the next question: ‘Can I search your bag? Can I search you?’ I would never say, ‘Can I look in your bag, can I check your bag?’ I would use the word search. ‘Can I search your bag, can I search you?’ That’s what I wanted to do. I wanted to search. So I wanted to make it clear for the courts that I wasn’t asking just to look in the bag, or I wasn’t asking to pat this guy down. I wanted to search you. And the answer ninety-nine point nine percent of the time would be yes.”
Brennan was a streetwise cop steeped in the ambiguities and contradictions of life on the underside, so he was not given to wild, sweeping assertions. Therefore, even if his percentage of 99.9 was exaggerated, his basic point seemed credible. Most people—57.6 percent—who told the Bureau of Justice Statistics that their cars had been searched in 2005 said that they had consented.
If you talk to police officers long enough, many will concede that the crooks they catch are stupid—amazingly stupid—and that the smart ones get away. A prosecutor described his brother, a New York state trooper with a wry sense of humor, dancing his way into probable cause for an automobile search. “I just want to warn you while I’m here,” he would say to a driver he’d pulled over for speeding on the Thruway, “it’s a criminal offense in the State of New York to carry a loaded gun in a car.” More often than you’d expect, the driver would reply innocently, “My gun isn’t loaded.” Or the trooper might say, “It’s a criminal offense to carry more than fourteen grams of cocaine.” The driver might protest, “I only have four grams.”
In Union Station, any drug courier smart enough to know the law would know that despite Sergeant Brennan’s approach, she had the right to keep walking, refuse to answer questions, and not give up her bag for a search.
But some seemed to think they were smarter than they turned out to be. “They’d say, ‘Well, it’s not really my bag,’ ” Brennan recalled. “One guy said this: ‘I was in the McDonald’s, I was sittin’ there eatin’, and I think I picked up somebody else’s bag.’ Or, ‘I was at the train station, I was sittin’ next to a guy, and I picked up another bag.’ Those were said several times. So then, when that would happen, I’d get the yes, and the first thing I would do is [search] the person, ’cause if you got a weapon or something like that he’s gonna get me with it.… Basically it’d be squeezin’ the pockets, you know, you can tell when you’ve got a weapon. Or the crotch, hit the crotch. That’s where a lot of drugs were, in the crotch. Then if I found something in the crotch I would just tell him, ‘OK, I’m gonna reach inside there and take that out or you can remove it for me. What have you got in your crotch? Most of the time it would be drugs. Well, all the time it would be drugs. When you found an object, it was drugs.”
His signal to make the arrest was to say “cigarette,” like a magic word. “Boy, I’d like to finish this up and have a cigarette.” Or, “I could use a cigarette.” And then he and his partner would grab the person and cuff his wrists behind him.
Curious, Brennan started asking those he arrested why on earth they had consented, “and it was just amazing why people told us, ‘You can search the bag,’ ” he said. The answers fell into three categories: First, they thought the police had information on them specifically, which meant, in effect, that they had already been caught. Although informants’ tips were often matched to Amtrak passenger lists to guide searches of those still aboard, those who had already left trains were unidentifiable, free and clear until something about them caught Brennan’s attention.
Second, they told Brennan that they believed he would search anyway, even if they said no. “ ‘It didn’t matter, did it?’ he quoted a generic reply. “ ‘If I told you no, you’re definitely gonna know I had drugs. So I had no choice but to say yes and try to make some excuse after you found them, if you found them. Or, I was hoping you wouldn’t find them.’ ”
That was the third reason Brennan heard: “They think they have the drugs so well hidden that they won’t be found.” He once discovered a sixty-gram cookie of crack cocaine disguised as cheese in a sandwich, complete with lettuce and tomato. “You know it’s not water soluble, you can’t hurt it,” he chuckled. “In the shoes, in the socks, in the baby diapers, in the false-bottom cans. One guy on the train had a can of oil. Who in the hell travels from Miami, Florida, to New York City with a can of oil? And you take the bottom off the can, and sure enough, there’s a half a kilo of coke in there. Potato-chip bags. That was a big thing, too. Potato-chip bags and cereal boxes. They would take out a portion of the cereal and a portion of the potato chips and reseal the bags. You know, just a dollar-ninety-nine-cent bag of potato chips. They’d remove the potato chips, leave some in there, and put in the cocaine. When you pick up the bag … you say, Yeah, I got it. You’ve never see
n a potato-chip bag filled to the top. When they’d take out the chips, they’d fill it all the way up to the top. When you squeeze the top of a potato-chip bag, it’s only half full. But this bag is full to the top. And then it weighs about 2.2 pounds—I got a kilo in here. Fantastic.”
Ingenious hiding places for both drugs and guns were displayed on the bulletin board of the D.C. police department’s Narcotics Branch, where Brennan now headed a unit that included undercover officers. Behind the dashboard of a Chevy Suburban, a void had been fashioned large enough to hold a 135-pound woman, or plenty of drugs. A rifle rack had been concealed in a truck’s wide visor. Drugs had been placed in live African snails imported to England, in a car’s gas tank that could be reached from the back seat, and in tampons that had been sliced open and resealed.
An entrepreneurial spirit had brought inventive devices to the marketplace. Police had found a Pepsi machine whose front opened to reveal a huge gun locker. A baseball cap contained a pouch, secured by Velcro where the visor met the headband, large enough to conceal a Beretta pistol. And a water bottle had been manufactured with three parts that unscrewed from one another: The top and bottom contained water, but the middle, its contents hidden by the label, could hold drugs.
Brennan liked to illustrate the intersection of police technique and case law by telling the tale of a twenty-one-year-old woman named Robin Nurse, who caught his eye with her purposeful stride through Union Station, off a train from New York at 12:30 a.m. She wore no rings, no necklace, no earrings. She walked past stores, staring straight ahead. Brennan followed her, then approached her, identified himself, and asked where she was going. To visit a friend, she said. And where did the friend live? On 145th Street, the woman answered. Oops, wrong city; there’s no 145th Street in D.C.
She averted her gaze, and her answers seemed evasive. She had bought her ticket with cash, which police interpret as an attempt to conceal identity. An ID card she produced could be purchased, he knew, and he later testified that he had “never seen one that was legal.” Brennan asked to search her tote bag. She refused. He had no probable cause to arrest her, so he told her that she was free to go but that her interview gave him grounds to detain her bag. She could wait until he got a drug-sniffing dog to check her bag, and if the dog smelled drugs he’d get a warrant to search it, or he’d give her a receipt for it and if it contained no contraband she could return and pick it up.
The Rights of the People Page 12