May 28, 2012
The Rise And Fall Of The Fourth Amendment: A Case Study

Imagine, if you will, that you are David Holland.  You live in New York City.  It’s 1:40 a.m.  You’re walking down East 129th Street in Manhattan.  You’re in a poor part of town, near a housing project.  It’s late at night.  All of a sudden, you see four police officers turn the corner up ahead and start walking towards you.

What do you do?

David decided to turn around and start walking in the other direction.  In America, you’re allowed to do that.  You’re allowed to turn around and start walking the other direction when you see police.  You’re allowed to do it for a good, reason, a bad reason, or no reason at all.  You’re even allowed to do it when you see a large group of police officers coming in your direction near a poor housing project in a “high crime area.”

Woops.  Just kidding.  You’re in a “high-crime area.”  Check your Constitutional rights at the door.

So one of the police officers (Officer Porras) asks David to “Stop!”  David stops.  Officer Porras asks David for identification.  David complies and gives his driver’s license to the officer.  After David hands his driver’s license over, Officer Porras asks him if he lives in the nearby public housing developement.  David says no.  Shortly thereafter, Officer Porras announces that he has no further questions for David, meaning he’s free to leave.  

But there’s one small problem: Officer Porras has refused to give David back his driver’s license.  So even though David is “technically” free to leave, he can’t very well leave without his driver’s license, which would serve as his primary means of identification should another police officer request his ID in the future.  So really, David is not free to leave in any meaningful sense.  Really, David is still being detained by the NYPD despite the fact that the officer who questioned him has expressly concluded his criminal investigation of David.  As of this moment, David has been detained illegally.

To wit, after Officer Porras informs David that his investigation is complete, a second Officer, Officer Woodard, approaches David and proceeds to ask him the exact same questions that Officer Porras asked him a moment earlier.  Officer Porras, still in possession of David’s driver’s license, says nothing, and allows Officer Woodard to continue asking David the same questions that Officer Porras has asked him mere seconds earlier.  There is no legitimate purpose to Woodard’s questioning.  Some might even refer to this as harassment.  But David is in a high-crime area, so nothing is true, and everything is permitted (which would be good if these officers were members of the Ancient Order of Masyaf Assassins.  Unfortunately, they are not).

As a result of the foregoing behavior by the NYPD, David becomes annoyed.  Perhaps because he’s already answered the first Officer’s questions.  Perhaps because they refused to give him his driver’s license back.  Perhaps because he’s discovered that these men are not members of the Ancient Order of Masyaf Assassins, which has depressed him greatly.  

Or perhaps it’s because David is asking himself a simple question: Why do I need to go through this again?  The police are clearly just harassing me at this point.  Aren’t I allowed to stick up for myself?  

So David decides to stick up for himself.  David makes it clear that he wants to leave.  He then tries to physically remove himself from the situation.  But he couldn’t, because “Officer Porr[a]s then assisted Woodard and [a third officer] in blocking defendant’s egress.”  So David decides that the police don’t have a right to do this to him, and pushes Officer Porras out of his way so he can leave.

You can imagine how well that worked out for David: David was shortly thereafter “restrained” by all four police officers, and was placed under arrest for assault and disorderly conduct.  During a search incident to arrest,  the officers discover marijuana and crack cocaine on David’s person, leading to drug possession charges as well.

During a pre-trial suppression hearing, David’s defense attorney files a motion to suppress the drugs found on his person, based on the fact that the police had illegally detained him, and therefore, all evidence detained against him is fruit of the poisonous tree, and ought to be suppressed.  Because David’s detention was illegal after officer Porras concluded his initial investigation, any evidence of drug activity found subsequent thereto was obtained in violation of the Fourth Amendment, and therefore, cannot be used against David in a court of law.

The trial judge, in this case, agrees with David’s defense attorney, explaining his ruling as follows:

[E]ven if there was a basis for initially requesting information from defendant, which there was not, any such justification was exhausted after he answered Porr[a]s who was obligated to return the identification and allow him to leave… .[David’s] continued detention” was unlawful, and [defendant’s reaction to it] was proportionate to the circumstances.

Huzzah!  The trial court did the right thing!  They suppressed evidence of criminal activity obtained by virtue of unconstitutional police practices!  Not only that, but he told David that he’s allowed to stand up for himself when police abuse their authority!  Strike up the band!  Let confetti rain in the streets!  The Constitution is back!

But lo’, the trial judge has done something dangerous.  He sided with a criminal defendant during a suppression hearing.  Even worse: the trial judge has employed a robust interpretation of the Fourth Amendment; one which protects criminal defendants from questionable police investigation practices.  The New York State Appellate Division (New York’s intermediate appellate court) knows better than to let that sort of malarky go unpunished:

[W]e disagree…that defendant’s “minimal use of force in the attempt to get away from the officers was a direct consequence of his unlawful detention.”  … [I]t is of no moment whether defendant punched or pushed Officer Porras, because, as stated above, the police officers did not initiate or attempt to initiate physical contact with defendant.

No, of course they didn’t.  The officers simply withheld an extremely important piece of property (i.e. his driver’s license) that David needs in order to meaningfully participate in society.  And ignoring the fact that the officers were violating his constitutional rights, I’m sure that David could have just politely asked for his driver’s license back and all would’ve been fine.  I’m sure David, being a poor resident of New York City, has never had a bad experience with the cops before.  Not even once.

So David did what many reasonable people would have done under the circumstances: he used physical force to escape a situation in which he was being detained illegally by overzealous police officers.  I say “overzealous” because I believe in giving police officers the benefit of the doubt.  Police work in big cities is tough.  And as Justice Breyer noted in a recent dissent, [T]he vast majority of fourth amendment violations … [are] motivated by commendable zeal, not condemnable malice.”  So we’re not going to ascribe any bad faith to the officers.  We’ll assume, for purposes of this discussion, that the officers were performing there duties in good faith.

But even so; the drugs that were discovered on David’s person would never have been discovered if the police had not stopped David based on nothing other than the fact that David decided he didn’t want to be wherever four police officers were headed at 1:40am at night.  His behavior is also reasonable given the fact that David was in the vicinity of a housing project in a large city, where Constitutional rights tend to be optional.

Does any of this matter?  Nope.  The Appellate Division believed that, because David had the audacity to stand up for himself,  David deserved to have all evidence against him admitted during his criminal trial.  In the Appellate Division’s eyes, standing up for yourself means the fact that police were violating your constitutional rights is suddenly irrelevant.  To quote the Appellate Division:

[A]ny allegedly unlawful conduct in stopping and questioning defendant was attenuated by his calculated, aggressive and wholly distinct conduct.

Which is a fancy way of saying that you’re not allowed to stand up for yourself against cops who are abusing their authority if you have to use physical force to escape.  You have to sit there and take whatever abuse they’re putting you through.  If you use physical force, you run the risk of “attenuating” any unlawful conduct by the police, and thus rendering all illegally obtained evidence admissible against you in a court of law.

David appealed.  Perhaps the New York State Court of Appeals (New York’s highest court) would help him!  Keep your hopes up, David!

Just kidding.  The New York State Court of Appeals is going to throw your case out by literally changing the definition of words:

Here, the Appellate Division’s reversal of Supreme Court’s order granting suppression, while termed “on the law,” was actually predicated upon a differing view concerning the issue of attenuation, which is a mixed question of law and fact. A reversal on a mixed question typically does not meet the requisites of CPL 450.90(2)(a)

But wait, what does CPL 450.90(2)(a) say?

[T]his Court may entertain an appeal from an order of an intermediate appellate court reversing an order of a criminal court only if it “determines that the intermediate appellate court’s determination of reversal … was on the law alone or upon the law and such facts which, but for the determination of law, would not have led to reversal.”

One judge, joined by a colleague, wrote a dissent.  He was a judge who’s valor and candor were so refreshing; his demeanor so impeccable; his legal acumen so beyond reproach, that he refused to be swayed by a majority of his colleagues on the NYS Court of Appeals.  That judge’s name?  Judge Lippman.  Chief judge of the New York State Court of Appeals.

What does judge Lippman think of the Appellate Division’s opinion?

[T]he Appellate Division simply concluded that any alleged illegality, no matter how extreme or provocative, must have been attenuated by defendant’s act of initiating physical contact with Officer Porras, even if that act consisted only of a push to get past the three officers illegally blocking his way. This was, in the end, not an attenuation analysis at all, but simply the announcement of an arbitrary rule that any physical contact with a police officer—no matter what its force or purpose—if not preceded by an attempt by the officer to contact the defendant, will be deemed distinct and unattributable to any precedent official illegality, no matter how provocative. Certainly, there is nothing in our cases that could be construed as permitting the substitution of such a rule for an attenuation analysis.

What about the Court of Appeals’ decision to dismiss David’s appeal due to lack of appellate jurisdiction?

Take it away, Lippman:

[By] pigeonholing this appeal as one involving a “mixed question,” the Court makes a choice that is not only unsound jurisdictionally, but erosive of this Court’s role in articulating the law governing police-civilian encounters.  The doctrine of attenuation in the search and seizure context is of course nothing more than a closely limited exception to the general, dominant rule that police intrusions must be justified at their inception…

If the exception is not to swallow the rule, care must be taken to assure that the doctrine is correctly employed. When courts with the factual jurisdiction to make attenuation findings employ facile analytic shortcuts operating to shield from judicial scrutiny illegal and possibly highly provocative police conduct, an issue of law is presented that is, I believe, this Court’s proper function to resolve.The alternative is to turn a blind eye to “tactics … [under which] any person might be approached, detained, intimidated, harassed, even provoked into a display of aggression and thereupon arrested, effectively eviscerating Fourth Amendment protections and ‘abandon[ing] the law-abiding citizen to the police officer’s whim or caprice’ [internal citations omitted].

Now wait a minute, Judge Lippman.  That seems like a bit of an exaggeration, don’t you think?

This is not an exaggerated or purely academic concern in a jurisdiction where, as is now a matter of public record, hundreds of thousands of pedestrian stops are performed annually by the police, only a very small percentage of which actually result in the discovery of evidence of crime.

Oh.  I see.

The final paragraph quoted above from Lippman’s dissent demonstrates why we should care when people like David lose their appeals.  David had marijuana and crack cocaine on him.  But not everyone who police stop has drugs on them.  In fact, the vast majority of people who the police stop do not have drugs on them.  By failing to protect David, we are also failing to protect every single person who might also be illegally obtained by police, but is not actually doing anything wrong. The police in this case harassed and provoked David, and as a result, were able to bust him for drugs.  But the police didn’t know that David had drugs on him when they were illegally obtaining him.  So by failing to protect David, we’re also failing to protect the hundreds of thousands of innocent people, most of them poor or disadvantaged in some way, who will have their rights violated by police engaged in the "often competitive enterprise of ferreting out crime." 

And that’s really what’s at stake: you don’t have to feel sorry for David.  But you do have to understand that it’s bad for everybody when people like David lose their case.  David’s case stands for an onerous proposition in New York: if police violate your constitutional rights, and you stand up for yourself, the police will not be punished for it in any way.  In fact, they will be rewarded by being able to get all evidence they illegally obtained from you, in violation of your Constitutional rights, admitted against you in a criminal trial.  

The Appellate Division and the Court of Appeals of New York State have given police an incentive to antagonize and harass people on the street in poor, crime-ridden neighborhoods, with the hopes that they will eventually lose their patience and try to escape from being illegally detained.  That’s not responsible law enforcement.  Nor is it the type of behavior that courts should be encouraging.

Unfortunately, this sort of thing is now commonplace.   Fourth Amendment case law in this country has calcified around an extremely law-enforcement friendly consensus.  Back in 1989, a survey of intermediate appellate courts in four state court systems found that your chances of winning a criminal appeal are laughably low:

[I]nstances in which a conviction or judgment were overturned and the case either remanded for a new trial or the charges dismissed were quite infrequent. Acquittals constituted only 1.9 percent of all appeals and only 9.4 percent of all nonaffirmances or “winners.” In no jurisdiction did acquittals occur in as many as 4 percent of all appeals.

Times have not changed much since then.  And the High Courts of each state aren’t doing much to correct the imbalance.  The NYS Court of Appeals recently patted itself on the back for increasing the number of criminal appeals it accepts to a whopping 5%(!) of cases.  And in those cases it does take, they “generally sid[e] with prosecutors more than with defense.”  

Many of these failed appeals are cases where the Defendant’s lawyer attempts to convince the intermediate appellate court that a trial court erred in admitting evidence which was obtained illegally.  But due in no small part to the Supreme Court’s 28-year war on the Exclusionary Rule, criminal defendants are worse off now, in virtually every jurisdiction, than they’ve ever been.

The point of all this?  Judicial oversight has consequences.  The legal rules they apply have consequences.  When judges don’t practice effective oversight of law enforcement officials that abuse their authority, or violate peoples’ constitutional rights, police no longer have incentives to avoid the kind of excesses they perpetrated against David Holland.  That’s what the Fourth Amendment is supposed to do: protect people from overreach and abuse by law enforcement.  But when we have appellate courts undermining trial judges in those few cases where they actually hold police accountable for their excesses, the Fourth Amendment’s guarantee against unreasonable searches and seizures becomes an empty promise. 

This is where we’re at right now.  And the Roberts Court shows no signs of slowing down.  A resilient majority of the Roberts Court has shown nothing but disdain for criminal defendants in the vast majority of their opinions.  Many of the Roberts Court’s most significant rulings: Hudson v. Michigan, Berghuis v. ThompkinsHerring v. United States, Kentucky v. King, Davis v. United States, Blueford v. Arkansas, every single one of these decisions reduced the amount of legal protection that criminal defendants have against police overreach.  Many state courts have followed suit, though some states have fought back against the tide of Fourth Amendment erosion by using state law to protect criminal defendants where the Fourth Amendment’s pronouncements now ring hollow.  Nonetheless, in most jurisdictions in this country, criminal defendants are at a significant disadvantage, and police are granted extraordinary license during criminal investigation, due in no small part to the reluctance of appellate courts (including the U.S. Supreme Court) to exercise meaningful judicial oversight of law enforcement officials whose questionable conduct led to the violation of a person’s Fourth Amendment rights.

I wish I could say I was optimistic that something will change.  I don’t think it will, at least not in the short-term.  We have a resilient majority of so-called “Conservative” justices on the Supreme Court who view the Fourth Amendment as an inconvenient obstacle to effective law enforcement rather than a means by which to protect people from the overreaches of police.  They are more afraid of criminals going free than they are of peoples’ rights being violated by the police.  It is a jurisprudence of fear hedged on a fallacious idea that somehow, we are worse off if the Fourth Amendment prevents prosecutors from using evidence against you that is obtained by violating the Constitution.  This, however, is absurd, for reasons pointed out by Justice Day 90 years ago:

If letters and private documents can thus be [unlawfully] seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. 

We are dangerously close to the last sentence.  But a majority of the Roberts Court seems not to care.  One can only hope that the words of Justice Brennan, dissenting 28 years ago in United States v. Leon, will ring true:

When the public, as it quite properly has done in the past as well as in the present, demands that those in government increase their efforts to combat crime, it is all too easy for those government officials to seek expedient solutions. In contrast to such costly and difficult measures as building more prisons, improving law enforcement methods, or hiring more prosecutors and judges to relieve the overburdened court systems in the country’s metropolitan areas, the relaxation of Fourth Amendment standards seems a tempting, costless means of meeting the public’s demand for better law enforcement. In the long run, however, we as a society pay a heavy price for such expediency, because, as Justice Jackson observed, the rights guaranteed in the Fourth Amendment ”are not mere second-class rights, but belong in the catalog of indispensable freedoms.” Brinegar v. United States, 338 U.S. 160, 180 (1949) (dissenting opinion). Once lost, such rights are difficult to recover. There is hope, however, that in time this or some later Court will restore these precious freedoms to their rightful place as a primary protection for our citizens against overreaching officialdom.


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    Land of the police state, home of the corrupt.
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    Srsly take the time to read this if you care about the real america and not the ever more popular symbol of capitalism...
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    This has an Assassin’s Creed reference in it, as well as a well-done argument. ALL THE AWARDS.
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