Monday, August 25, 2014

Detention or arrest?

In the spectrum of police-civilian contacts, the demarcation between temporary detentions and arrests has been deliberately kept blurry and fact-based. This is important because a temporary detention requires only reasonable suspicion of criminal activity, while the arrest cannot be made without probable cause. In Terry v. Ohio, 392 U.S. 1, the U.S. Supreme Court carved out an exception to the requirement of probable cause for arrests, by creating a so-called concept of 'temporary detentions.' This gave a green light to the police to search individuals as long as they could articulate some semblance of suspicion of crime, but without having a full-blown probable cause for arrest. In Florida v. Royer (1983) 460 U.S. 491, the Court hastened to clarify and warn that police are limited in their activities during the temporary detention:
The predicate permitting seizures on suspicion short of probable cause is that law enforcement interests warrant a limited intrusion on the personal security of the suspect. The scope of the intrusion permitted will vary to some extent with the particular facts and circumstances of each case. This much, however, is clear: an investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's **1326 suspicion in a short period of time. See, e.g., United States v. Brignoni-Ponce, 422 U.S., at 881–882, 95 S.Ct., at 2580–2581; Adams v. Williams, 407 U.S., at 146, 92 S.Ct., at 1923. It is the State's burden to demonstrate that the seizure it seeks to justify on the basis of a reasonable suspicion was sufficiently limited in scope and duration to satisfy the conditions of an investigative seizure.
In that case the U.S. Supreme Court held that the police exceeded the permissible limits of Terry detention when they asked the traveling defendant to accompany them to a small police room, retaining his ticket and driver's license, indicating in no way that he was free to depart.
The line is crossed not only when the police formally arrest a person but also when the officers use "means that approach the conditions of arrest." Florida v. Royer, supra, 460 U.S. 491, 499. It is a functional test, i.e. what were the actions of the police that under the totality of the circumstances imposed a greater restraint on liberty of the individual obviating the need for probable cause.

In a recent case the Ninth Circuit broadened the allowed limits of temporary detention by police, thereby chipping away from the Fourth Amendment rights.  In U.S. v. Edwards, that was decided on July 31, 2014, No. 13–50165, the Ninth Circuit held that the facts in question did not arise to an arrest requiring probable cause for the search of the defendant, but merely a temporary detention, supported with reasonable suspicion of criminal activity. There an anonymous 911 caller reported that a young black male was shooting at passing cars. The caller gave the general description of a black male in his 20s, wearing black/gray clothing and the location of the crime. The police were dispatched to the area within minutes, and observed a young black male, matching the general description of the suspect, walking 75 feet from the location of the reported crime with another male. Four officers with guns drawn detained both men. Both were ordered to kneel on the pavement, Edwards was then handcuffed while on his knees. Then he was ordered to stand up, and spread his legs. During the pat down of his clothing, the officer felt a hard object, which fell to the ground as he pulled on the pants. The object was a .22 caliber handgun. 

The Ninth Circuit reasoned that even though undoubtedly the police conduct was highly intrusive and aggressive in nature, it still did not amount to an arrest: "... pointing a weapon at a suspect and handcuffing him, or ordering him to lie on the ground, or placing him in a police car will not automatically convert an investigatory stop into an arrest that requires probable cause." The Court has also to look at the justification for the instrusiveness of the police methods and here the Ninth Circuit decided that the officers had reasonable fear for their safety in light of the caller's tip of an ongoing dangerous crime, i.e. shooting at passing cars. Thus the gravity of the reported crime in the eyes of the Ninth Circuit determined the permissible limits of the temporary detention. Somehow the Court missed, that the Fourth Amendment rights do not hinge upon the gravity of the offense and exist independent of the level of criminality of the offense. Even if the police had reasonable suspicion to detain the males, there was no real or perceived danger to the police officers by any of the actions of the young males at that moment. There was no evidence offered that the young men failed to cooperate or resisted the actions of the police or somehow eluded the detention. Furthermore, the Court did not even consider where other less intrusive methods were available to the police, for example, whether the circumstances warranted the need to order the men to kneel on the ground, and place handcuffs on them while on the ground.

In reliance on a recent U.S. Supreme Court decision in Navarette v. California,  see below, the Ninth Circuit also held that the anonymous caller's 911 tip had sufficient indicia of reliability to furnish the police with reasonable suspicion of criminal activity. U.S. v. Edwards, No. 13–50165. 

There goes the chipping away from the Fourth Amendment. 

Thursday, August 21, 2014

Racism and police state

The recent tragedy and ensuing police crackdown of protesters in Ferguson, Mo, have created a painful flashback and deja vu feelings confirming our deep-seated fears that racism in America is far from in subsidence, but actually in a rise. As innocent black kids get intimidated, harassed, jailed and murdered at the hands of our militaristic police, stamped by silent imprimatur and complacence of official authorities, a looming question arises in the horizon, just what responsibility as a society we owe to the humanity. The world is watching as we as a nation, continuously declaring our moral superiority over the rest, condemning other nations and positioning ourselves as a superpower, are sinking in the worst human rights record of treatment of blacks and, have erected a huge domestic military arsenal, a police state, to perpetuate the status quo.

Call for action.