Had the police officer put his hands in the man’s pockets?
Yes, the man said, which prompted a flurry of follow-up questions.“Which pockets?” Judge Scheindlin asked. “Pants? Jacket? Shirt?”
The man, Nicholas Peart, 24, was certain the police had reached into his pants pockets.
“Front pockets or back pockets?” the judge asked.
In a odd way, this doesn't seem like a particularly big deal, all things considered. And yet, it matters enormously as it puts the lie to so much of the Supreme Court's Fourth Amendment jurisprudence. The law works in baby steps, incrementally increasing the police authority to "intrude" on a person's physical integrity, each step with its own lingo and its own rationale. To the extent they have any authority to touch you, the Court buys into a justification to it.
But as the testimony before Judge Scheindlin reveals, the finely honed rules that exist in a vacuum only a justice could love don't play out nearly as well on the mean streets. If there is any "new professionalism" in Justice Scalia's eyes, it's that they don't beat the kid with a sap as they rummage through a young black man's pockets. Shouldn't we be happy enough for that?
As a matter of law, the police are allowed to frisk for their safety when they have stopped someone whom they reasonably suspect of engaging in criminal activity and, in addition, is thought to be carrying a concealed weapon. In a landmark 1968 decision recognizing the right of police officers to conduct stop-and-frisks, the Supreme Court held that frisking was for “the protection of the police officer and others nearby.” The court also said that “it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other instruments for the assault of the police officer.”
The rule makes sense, that if police have a reasonable articulable fear that a person is armed and could use a weapon against a cop, they have the authority to pat the exterior of a person's clothing to ascertain whether he's a threat. After all, the law doesn't require police to take crazy risks with their life or safety when doing their job.
But that's only for self-protection, and it requires a police officer to have specific articulable facts to show why a reasonable suspicion existed. It sounds like more of a test than it is, since the cop need only offer some magic words, furtive gesture or reaching for his wasteband, before a judge approves. No judge wants to be the one to tell cops to risk their lives, or be responsible for a holding that ends with a dead cop, and so the amount of slack allowed is huge.
What makes the pat down even more wiggly is that there are only two times when anybody passes judgment on it: when they find a weapon or when they arrest the person for some other crime. When the former occurs, the cop is a genius for having used his spidey sense to discover a gun or knife. When the latter occurs, the defendant is a criminal, and any claims about exceeding the limited authority for a pat down to conduct a search are discounted because he's a criminal. Who you going to believe, a cop or a criminal?
The real world difference between a pat down and a search starts with whether there is a basis to believe a person is armed, but ends with hands outside the clothing, patting the area where a weapon might be, or inside the clothing, where the contraband can be found.
In the landmark 1968 decision, in Terry v. Ohio, the Supreme Court observed that frisking, even when limited to a pat-down, was far more than a “petty indignity” unworthy of Fourth Amendment protection. Rather, the court found, it “is a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment, and it is not to be undertaken lightly.”
Even assuming that a police officer, well trained and properly versed in each nuanced baby step the law allows, an excess of caution compels him to pat a guy's pockets from the outside of his clothing and feels something inside. It's not big or very hard, and there is no way to mistake it for a weapon of any sort. But it's something, and it feels like...drugs. He has now touched it. He has now figured out that he's got a live one on the hook, a kid with bad stuff in his pants. What is he going to do?
There is nothing to suggest, beyond his pat down, that there is a reason to conduct a search of this person. No probable cause to believe that he's committing a crime. Yet the cop can't untouch whatever was in the pocket, and it just feels so wrong to let him walk. And so he shoves his hand into the pocket and pulls out a dirty Kleenex and half a Kool he was saving for later.
Judge Scheindlin is cutting through the lies cops tell to show how careful they are in protecting the rights of citizens, with all 700,000 searches done last year. While the testimony shows the fiction that plays out in police courtroom testimony, where they scrupulously honor the constitutional rights of New Yorkers so that no one ever suffers the "petty indignity," oops, "serious intrusion upon the sanctity of the person," the reality is that the baby steps and detailed rules that make so much sense in lengthy legal opinions and footnoted law review articles are a mere blur on the streets of the City.
Get stopped? Get frisked. Get touched wherever the cop wants to touch you, inside your pockets or out, for whatever reason or no reason. Rules of law are for courtrooms. The rules of the street are playing out in Judge Scheindlin's courtroom, and for the first time in a very long time, the testimony of the innocent stopped and frisked that otherwise is never heard by a judge is telling the real story about how the law works.
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Source: http://blog.simplejustice.us/2013/04/08/far-too-frisky.aspx?ref=rss
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