The King’s Soldier’s Are Back; Substitution of “Officer’s Safety” For “Probable Cause”

Like most modern police agencies, the Laguna Beach Police Department has its share of out-of-control police officers. It is difficult for normal law abiding types of citizens to imagine that there really is a small minority of police officers who cannot handle the “awesome power” that today’s peace officers are endowed with. For example, Judges may only issue warrants to search or seize persons and property “but upon probable cause”:

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” (U.S. Const. Amend. 4).

However, even since 1968 police officers have been endowed with power greater than a Judge’s; the right to seize a civilian when the facts known to the officers indicate a “reasonable suspicion” that the civilian has just committed a crime, is in the process of committing a crime, or is just about to commit a crime; something in the law known as “criminality afoot”. Whereas “probable cause” is generally defined as a substantial probability that a person committed a crime, “reasonable suspicion” is substantially less. Only some suspicion based on articulable facts of “criminality afoot”. See, Terry v. Ohio, 392 U.S. 1 (1968).

In his sole Dissenting Opinion in Terry v. Ohio, Associate Justice William O. Douglas warned the American people the danger in the Supreme Court deviating from the standard agree upon in Philadelphia, Pennsylvania in 1791 for when the government can seize a man; “probable cause”:

William O. Douglas. Associate Justice of the United States Supreme Court 1939 – 1975

The infringement on personal liberty of any “seizure” of a person can only be “reasonable” under the Fourth Amendment if we require the police to possess “probable cause” before they seize him. Only that line draws a meaningful distinction between an officer’s mere inkling and the presence of facts within the officer’s personal knowledge which would convince a reasonable man that the person seized has committed, is committing, or is about to commit a particular crime.

In dealing with probable cause, . . . as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. Brinegar v. United States, 338 U.S. 160, 175.

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. Until the Fourth Amendment, which is closely allied with the Fifth, [n4] is rewritten, the person and the effects of the individual are beyond the reach of all government agencies until there are reasonable grounds to believe (probable cause) that a criminal venture has been launched or is about to be launched.

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can “seize” and “search” him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country. Terry v. Ohio, 392 U.S. 1 (1968), Douglas, J., Dissenting.

Ever since Terry v. Ohio, things have been going downhill on the Fourth Amendment freedom front. See, “Dirty Harry And The Criminal Procedure Counter-Revolution”

As a practical matter, “Officer’s Safety” usually trumps your Fourth Amendment right to be free from an unreasonable seizure of your person. These days a police officer can order you around, like you were in the Army. If they scream at you and order you to prone yourself out on the ground and place your hands behid your back, asking the officer what is going on before you decided to prone yourself out may result in your being propelled to the ground (not by gravity alone), arrested and prosecuted for some “resistance offense”. This is no joke. You really don’t have to do anything wrong to get a boot in your head, a trip to jail and a bogus criminal prosecution for striking the officer’s fist with your chin. Again, this is no joke.

Usually law abiding citizen types would just not believe the above and foregoing. The can really don’t believe that police officers often do terrible things to total innocents. However, chances are that if you are reading this page, that you are not the same person who you were before the police beat you, or falsely arrested you, or falsely and maliciously tried to frame you; to shift the blame to you.