Constitutional vs. Convenient
Frank Borelli
Editor-in-Chief
Officer.com
Recently, in our nation’s capital, Washington D.C., the police department put an operation into effect empowering their officers to check the occupants of every vehicle coming into a given PUBLIC area to find out whether or not they had valid business there. On the one hand, as a police officer, I can see the obvious deterrent value of this action. On the other hand, as a free American citizen, I’m offended by the audacity of a police department that feels it can demand me to justify why I’m traveling on a public road. As I considered both sides of this argument I felt that this might be a topic of interest and decided to outline it before “fleshing it out”. Here’s what I came up with.
Let’s start out with something simple. The Fourth Amendment to the Constitution:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
If a police officer on the street, for no cause, stops you, he has effectively seized your person. As free citizens, such seizure is in violation of the Fourth Amendment unless other circumstances exist. For instance, if you are acting in a suspicious manner then the police officer might have cause to stop you and investigate the situation. In such situations he can further perform a “Terry Stop” or “frisk” you for his own safety. Such an action is restricted and has been deemed Constitutional through various court cases. However, the original cause of the stop (the seizure) of your person still has to exist.
So, we have a traffic stop situation. There are several common causes for traffic stops:
- The police officer has witnessed you committing a moving violation of the traffic law
- The police officer has observed an equipment malfunction on your vehicle
- The police officer believes that your vehicle or you (as the driver or passenger) match a description of a wanted person or vehicle connected with the investigation of a crime
- Arbitrary and impartial enforcement activity is on-going, such as Drunk Driver Check Points
But what if none of those circumstances exist? Is it legal for a police officer to stop you simply because he can as you travel on a public roadway?
Let’s consider this situation very carefully:
If you HAVE NOT committed a moving violation, and
If you HAVE NOT got any equipment malfunctions on your vehicle, and
If you HAVE NOT got anyone in your car that matches the description of a wanted person or the vehicle doesn’t match, and
If there is NO specialized enforcement activity going on, then
How does the police officer - or his agency - justify “seizing” you? That is effectively what he’s done when he stops you and robs you of your freedom of movement (in my opinion).
Now certainly there can be circumstances that exist wherein the police officer would be justified in stopping you. Let’s use a crime scene area as the example. If a crime is committed and there is a crime scene that is under investigation then access to or through that crime scene obviously has to be controlled. Often this means stopping people in their travels and not permitting them into a given area. Such an action is completely justifiable during the on-scene investigation of a crime.
How about if a given area has an existing threat in it? When I was in the Army as a Military Policeman, we closed all access to a base hospital because of a bomb-threat that had been called in. There were quite a few service members who were upset that we wouldn’t let them IN to the hospital. But we had a good reason for keeping them out: a potential threat existed inside and it would have been irresponsible to let them go walking into an area where they could be killed.
And with that very thought I felt I had come up with what Washington DC’s police department might be using for the justification of its actions: By stopping the free movement of American citizens into a given PUBLIC area, it might be saving their lives. Why? Because the violent crime rate within that given area was (is) SO high that there is a real risk to those who enter it. What is the biggest difference between THAT set of circumstances and the one of a hospital on a military installation?
The military installation isn’t open and intended for general public use. For all intents and purposes, it’s private property. Controls and legalities are different on private property. You, as a property owner, can tell anyone to stay off your property. No one should be there without your permission and / or blessing. Such control extends beyond a citizen’s private property to corporate private property. I worked security at an apartment complex and, as an agent of the property management company, I exercised their will to keep non-residents off the property at certain times. If a non-resident was encountered then they were identified and asked about their business on that PRIVATE property. Depending on their answer they were allowed to continue or they were sent on their way.
Does the government of Washington DC contend that the entire city is private property? I think that’s a bit unrealistic and untrue if they do. If not, then how do they justify robbing free American citizens of the ability to travel on a public roadway? My better question is why hasn’t anyone they’ve stopped sued them for violating their Civil Rights?
I greatly appreciate the intent and motivation of the Washington DC police department. In this case, however, I have to wonder if their actions haven’t traded Constitutional value for the convenience of easy law enforcement.
What do you think?
BE SAFE!
I’m glad I’m not working there…. Should be just a matter of time before that blows up in their face. At least that’s how I see it!
There is actually president for these types of laws. For instance many states have “stop and identify laws” and in some states there is actually laws that allow a peace officer to stop a person in order to confirm whether or not they have a valid driver’s license.
I can see both sides of this issue, especially with the “slippery slope” theory.
One bad issue that I could see with this is where a peace officer tends to target people of one race over another or of one national origin from another. There could also be a problem with one officer stopping one person repeatedly for this “stop and identify” law for some purpose other than law enforcement (however it has been my experience that in this day and age police supervisors are catching this activity fairly quickly and taking the proper corrective action). If these stops are conducted they need to be documented at least at the local level taking into account the demographics of the population that the police serve.
I think that this law could be alright and even good if the questions that a peace officer is allowed to ask are codified. For instance, there used to be a law in Texas (no longer) where a peace officer could stop a person whether in a vehicle or on foot and ask them for their name, address, and date of birth. Now this information can be instantly confirmed with the wonder of today’s computers and also tell you whether or not that person is wanted for a crime. If you find that the person is wanted or has given you information that you cannot confirm, then you have the right to question further based on a stop without probable cause. So I believe that a seizure of this sort would be a minor inconvenience to honest citizens. Of course if you stop a person WITH probable cause then it is business as usual.
I think this law could be useful in my community because my town has not seen fit to enact a city wide curfew for juveniles. I occasionally with stop my patrol car (normally at night) and speak to juveniles that are walking around and they (being a polite Texas town) will engage me in polite consensual conversation. This has worked for me so far but I did have one occasion where a juvenile upon my approach decided to run from me on foot. I was able to chase and apprehend the juvenile and luckily some papers fell out of his pocket when he ran so my probable cause was littering (he also had a bit of marijuana in his pocket but I did not know that until I apprehended him and searched him because that did not fall out of his pocket). Simply running is not against the law in Texas unless you are actually being stopped (or seized) by the police.
I think that this law could be great as long it is narrow in scope to simply identifying a person. I think that this would have been a great inconvenience (to confirm a person’s identity) in the past but now, with today’s computers it could be a minor and almost unmemorable part of a citizen’s day as long as it is used as it was intended. It also assists in complicated thinking or formulating on the part of an officer in developing probable cause in just simply approaching an individual and asking for their name. I believe that this would cut down on suppression hearings in felony and high grade misdemeanor cases because the original seizure would not have to go through any complex legal “sniff” test that normally occurs on stop and talk cases. I also believe that peace officers are extremely well trained these days in most states and in most jurisdictions and that officers in the United States may be able to take on more responsibility and authority rather than having it constantly narrowed, and limited by the court systems. Most cops are not lawyers and they should not have to have encyclopedic knowledge in order to establish probable cause. Because if the Federal 9th Circuit Appeals Court has taught us anything is that probable cause on the left wing, is not always probable cause in the main stream. In addition it should be noted that the United States is not a police state like for instance China. So if cops focused most of their time on “stop and identify” cases then they would not be able to effectively respond to normal calls for service or cases that require criminal profiling. Agency policies could also help this law become more just.
I also think the government should also be careful that they are not granting too much power to the police because if they go too far justice will be meted out on the street and not in the courtroom where legal arguments should take place. Judicial oversight is our greatest safeguard to freedom in these matters.
I meant to say precedent not president sorry, its been a long shift…
If this is going to occur…there is an old sage saying in law enforcement. There is a big difference between probable cause and “possible cause”. This lubes the slippery slope.
“If not, then how do they justify robbing free American citizens of the ability to travel on a public roadway?”
The same way they justify a out right ban on firearm poession of lawabiding citzens.
If you have to spend that much time trying to find a wy to justify the policy there is something wrong with it. I see this as a clear violation of the 4th and D.C. will pay out a lot of money when they land in court.
Everyone needs to remeber the 4th Amendment prohibits “unreasonable searches…” and that is the key to this. Will the triers of facts find it reasonable or unreasonable….that will be the question that needs to be answered. Additionally 4th Amendment law is way too complex to give just a short simple answer here.
Well this “stop and identify” law has been used successfully in numerous nations that are highly developed. Just because a peace officer can stop you (momentarily) and ask you identity questions is not the fall of democracy. If anyone can tell me the detrimental harm in this particular law, please I am all ears. I believe that this law is not incompatible with a free society and I believe that this would not be “unreasonable” as stated in the 4th amendment especially with today’s technology. This law could save numerous lives and would still be subject to judicial oversight which is not available in countries that are not free.
Regardless of what judges say, it sure “feels” like something a free people shouldn’t tolerate. Oddly, I don’t have the same objection to sobriety checkpoints. I think that once you are in control of a rolling deadly weapon on public streets, you should never feel completely immune from a bit of random scrutiny.
This is as ridiculous as MPDC’s failed program that consisted of knocking on doors and asking if they can search for guns. DC is as close to a communist state as one can get and this latest news does not suprise me one bit. You want to reduce violent crime in DC, give law abiding citizens their guns back and forget these stupid witch hunts. Of course that will never happen, what do you want from a city who re-elected a man who was caught on tape smoking crack.
For the record, I believe that free non-felon citizens in Washington DC should have the right to bear arms. The only people allowed to have guns in DC are cops and criminals. That is ridiculous and should be remedied. How are people to defend themselves against the criminal element that has taken hold of that city?
Just because we CAN do something does not necessarily mean we SHOULD actually do it. I am sure there are going to be citizens who live and travel in that very area who will think this is a great idea, and who will be heavily quoted to show that,,, “see, even the residents here are all for this!” Frankly, you will find a certain segment (alarmingly sizable segment) of the general population who see nothing wrong with random sweeps and searches of our homes, cars, papers, etc in the interest of “public safety” and that pesky 4th Amendment be damned!
Sorry, not me. We in law enforcement need to balance 3 very important principles; 1) We have a duty to protect our society and faithfully apprehend those who endanger it and violate its laws, 2)We have a duty to protect, honor, and uphold the Constitution, even when dong so makes fulfilling number 1 difficult, and 3)We have a duty to act with integrity and in a manner that garners support, rather than acrimony, from the majority of citizens who are actually law-abiding and ready to support law enforcement unless we uniformly treat EERYONE like a suspect, even without supporting evidence. MPDC’s policy, while it may not shred the 4th Amendment (or so sayeth some judge), definitely crumples it up in a ball and tosses it into the corner for the cat to kick around awhile. It will almost certainly lead to poorer relations with the community.
THe MPDC administrators who came up with this idea should ask themselves if the end justifies the means, and at what cost.
MPDC should ask
This very topic was on the news again this evening (June 16th). It was interesting to see one DC councilmember make the statement that in a survey done in HIS ward the citizens were AGAINST this program 90% to 10%. Immediately following that was the DC Police Chief and the DC Attorney General both talking about how great a program it was and how the DC Court System has already decided that it’s entirely constitutional to do what they’re doing. Mind you, this is the SAME DC Court system that decided prohibiting every citizen from owning a working firearm was also constitutional. It’s the SAME DC Court system that decided it was legal and constitutional for DC police officers to go door to door knocking and asking WHOEVER answerd for permission to search the house for guns, drugs, etc. I guess we’re still waiting to see how the 2nd Amendment one works out - but THIS one, it appears, is going to be repeated.
I appreciate that DC feels the need to do SOMETHING to increase crime deterrence but violating citizens’ constitutional rights doesn’t seem like the right thing to do to me.
It is being reported last evening and this morning that a civil liberties legal group has now filed a lawsuit against the District of Columbia on behalf of four individuals who were stopped during this enforcement effort.
http://www.examiner.com/a-1451807~Group_files_lawsuit_against_DC_vehicle_checkpoints.html
I’m surprised it’s only four people.
I’m also surprised that the statements made defending this action are boiling down to, “But the DC Court system said it was okay.”
That’s the same DC Court system that said citizens couldn’t own or possess operational firearms too. THAT law has been struck down and is now in the Supreme Court. Want to bet DC takes THIS violation of the Fourth Amendment all the way to the Supreme Court?
I say again: They should be setting the example of Constitutional operations… not testing to see what they can get away with.
Looks like you may be able to have a revolver in your home if you get it inspected and permitted at the local precinct. No semi-automatics yet. Maybe the daily murder rate will go up at first for bad guys and then go down altogether.