Officer's Safety Has Replaced Probable Cause

PREFACE: THE MODERN POLICE STATE AND WHY YOU DON’T KNOW THAT YOU ARE LIVING IN ONE

Police officers usually don’t go “hands on” any more unless the person is handcuffed, or there are multiple officers to beat the person, “in concert”. These days they usually don’t even use their batons. They either tase you or just shoot you. There are no real world consequences for police officers to even murder an innocent; that is so long as no one is lurking in the shadows with a cell phone who video recorded the murder in sufficient detail to not allow the police to make up some phony justification as to why the officer properly shot another.

It is not coincidental that the largest Sheriff’s Department in the United States, the Los Angeles County Sheriff’s Department, does not have video recorders in their patrol cars, or video or audio recorders on their persons. They don’t record because the Los Angeles County Sheriff’s Department is a truly brutal agency and they only want one side of the story to show at your bogus criminal trial or in your civil rights action; theirs. It is really that simple.

Most people truly believe that since they have never had a bad experience with a police officer, and since they don’t break the law, that they have nothing to worry about; that the police are not going to treat them poorly. If you have not seen or experienced the police outrage and you were just told about it by another, you just would not have believed it. That is how and why they do what they do; falsely arrest those who display the audacity to verbally question of challenge police orders or conduct. After all, who are you going to believe in the absence of a recording or other proof that the constable is lying.

So, the public believes that they want Conservative Judges and Justices to protect them from the criminals. Moreover, most people are very willing to give of some of their constitutional rights because they see those rights as an impediment to law enforcement rousting the bad guys. After all, since they don’t commit crimes, they cannot imagine that any such approval might result in them being violated. Ergo, case-by-case, issue by issue, with the approval of the body politic, we slowly descend from a free society to one that as a practical matter is a quasi-police state.

The descent into that quasi-police state happens easily. The only people who actually understand the ramifications of appellate court decisions that pare-down your constitutional rights (i.e. increase police powers) are the lawyers, the judges and the police. No one else really knows; not because it’s a secret; because they don’t read the appellate cases or don’t receive training bulletins; pure and simple.

The public has no clue until their criminal defense lawyer or proposed plaintiff’s counsel tell them that in the real world, they really don’t have the rights that they thought they had. Even worse, the public learns to accept that.

Moreover, thirty years ago if police officer pointed gun at a person’s head and ordered him to prone-out on the ground, the person was considered “under arrest”, not a mere “detention”. However, because judges in the real world are loathe to exclude incriminating from evidence from a criminal trials, they pervert the contours of those protections that at least used to be afforded to us by the United States Constitution.

Since 1987, however, pointing guns at person’s heads and ordering them to prone themselves on the ground and more recently then kneeing them in their backs or necks or head, handcuffing them and placing them in the back of the police car, all as a precautionary measure for “Officer’s Safety”, is lawful; all because the Judge or Justices didn’t want to exclude the incriminating evidence found on the person when they are searched. See, United States v. Buffington, 815 F.2d 1292 (1987).

That is not the case any longer. Now, pointing guns at just about anyone, under just about any circumstances will usually ultimately be excused by a jury or a judge. The public sees SWAT teams deployed all of the time; even when their use is overkill and an excuse to use the event as a SWAT training exercise.

The public drives by and sees police officers who have youths handcuffed and sitting on the curb, and after a while, they think that such restraint is normal (and, therefore, reasonable).

Moreover, the public has a naive perception of the police profession. If you ask 100 prospective jurors why they think someone becomes a police officer, 95 of them will say “To protect and serve the public”. It’s a reflex. It’s written in one way or another on many, if not most, patrol vehicles in the United States. It’s difficult to convince those not interested in being convinced, that the persons entrusted with their security and safety present more of a real danger to them than the criminals who they are supposed to protect us from.

The public has no idea that a neighbor’s noise complaint to the police usually results in the police demanding entry to make sure that everything is okay; any objection to which often results in false resisting / delaying / obstructing officer arrest and their often accompanying police beating.

Point being: the police state isn’t the police; it’s the public. It’s what their verdicts are in criminal resisting arrest / battery on peace officer cases. It’s their verdicts in police misconduct civil rights lawsuits.

JUDICIAL REPEAL OF FOURTH AMENDMENT PROTECTIONS VIA PERVERSION OF HERETOFORE WELL ESTABLISHED CONSTITUTIONAL PROTECTIONS AGAINST THE POLICE.

That Minimal Standard Ratified By The States In 1791 For The Police To Seize Another, “Probable Cause”, Has Been Replaced With “Officer’s Safety”.

Say that a police officer gets call for a suspicious man wearing a red jacket at a park who is vandalizing park signs. When the police arrive at the scene they don’t have “probable cause” to arrest the man. They only have “reasonable suspicion” of “criminality afoot” by man; sufficient to “detain” him to either confirm or dispel the officer’s suspicion that the man had vandalized park sign (know as an “investigative detention“).

When the police accost the man at the park point guns at his head and order him to prone himself on the ground, and thereafter kness drop his back, handcuff him and place the man in the back seat of their patrol car, they do so as a precautionary measure, for “Officer’s Safety”.

As they place the man against the car before placing him inside, they empty out the man’s pockets and find knife; a knife that happens to turn out to be the weapon that was used to rape and murder a little girl at the park. The police don’t even know that the man raped and murdered a little girl yet or even that there was a little girl murdered at all. The police arrest the man for carrying a concealed weapon and take him to jail.

After the police take the man to jail they learn that there was a little girl who was stabbed to death at the park that day. The police crime lab tests the knife and find a DNA match showing that the knife had the little girl’s blood on it.

The man is then charged with rape and murder by the District Attorney’s Office, and his criminal lawyer makes a motion to suppress (exclude) the knife from evidence at trial on the ground that the arresting officer didn’t have sufficient “probable cause” to have arrested the man at the park when they handcuffed him at gun point, proned him on the ground, kneed him in his back and placed him inside of the police car.

Therefore, the full scale search of the man was unlawful because they only had ground to detain but not arrest him, and that knife should be excluded from evidence at trial because it is “the fruit of the poisonous tree“; evidence obtained in violation of the man’s fourth amendment right to be free from an arrest of one in the absence of “probable cause” to have arrested the man. If the knife is excluded from evidence the man will walk free.

If the police restrained the man in a manner that exceeded that level of force allowed pursuant to an investigative detention, then he was technically “arrested” when the police pointed their guns at him, proned him on the ground, knee dropped him, handcuffed him and placed him inside of the patrol car.

What will the judge do? If the judge grants the motion to suppress the man walks free even though it is very clear that he was the rapist / murderer. Will the courts then find that the manner of restraint of the man exceeded that allowed pursuant to an investigative detention? Probably not. If they do then they must exclude the knife from evidence at trial and the man walks free, and the politicians (i.e Judges in this instance) are not inclined to do that. So, they usually will now declare that pointing guns at persons not suspected of violent crimes, proning them on the ground, handcuffing them, placing them in police cars and doing full scale searches of the persons and their property, is a reasonable manner of restraint for a detention.

The moral of our story is that case by case, issue by issue, year by year, the courts have allowed the police to use increasingly greater levels of force. Often because they don’t want to exclude evidence at criminal trials, and otherwise because Conservative Judges and Justices are bent on simply allowing the police to ignore longstanding search and seizure rights of the public in the name of officer safety.

This constitutes nothing less than Judicial Repeal of the Fourth Amendment’s probable cause requirement to seize and searches persons and their places and effects. Like William O. Douglas stated in his sole Dissenting Opinion in Terry v. Ohio, 392 U.S. 1 (1968):

In other words, police officers up to today have been permitted to effect arrests or searches without warrants only when the facts within their personal knowledge would satisfy the constitutional standard of probable cause. At the time of their “seizure” without a warrant, they must possess facts concerning the person arrested that would have satisfied a magistrate that “probable cause” was indeed present. The term “probable cause” rings a bell of certainty that is not sounded by phrases such as “reasonable suspicion.” Moreover, the meaning of “probable cause” is deeply imbedded in our constitutional history. As we stated in Henry v. United States, 361 U.S. 98, 100-102:

The requirement of probable cause has roots that are deep in our history. The general warrant, in which the name of the person to be arrested was left blank, and the writs of assistance, against which James Otis inveighed, both perpetuated the oppressive practice of allowing the police to arrest and search on suspicion. Police control took the place of judicial control, since no showing of “probable cause” before a magistrate was required.

That philosophy [rebelling against these practices] later was reflected in the Fourth Amendment. And as the early American decisions both before and immediately after its adoption show, common rumor or report, suspicion, or even “strong reason to suspect” was not adequate to support a warrant [p38] for arrest. And that principle has survived to this day. . . .

. . . It is important, we think, that this requirement [of probable cause] be strictly enforced, for the standard set by the Constitution protects both the officer and the citizen. If the officer acts with probable cause, he is protected even though it turns out that the citizen is innocent. . . . And while a search without a warrant is, within limits, permissible if incident to a lawful arrest, if an arrest without a warrant is to support an incidental search, it must be made with probable cause. . . . This immunity of officers cannot fairly be enlarged without jeopardizing the privacy or security of the citizen.

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. [p39] 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.  Douglas, J., Dissenting.

Thank you again for visiting with us.

Jerry L. Steering, Esq.

Published: 2/5/19