The Rights of the People (10 page)

• • •

I came away thinking that the
Terry
stop was morphing from merely protective into investigative. A federal narcotics prosecutor confirmed my hunch: “We’ve gotten now to the point where we can stop if we think they’ve got drugs only. It’s not necessary to have guns. Now it’s not reasonable suspicion that they’ve got something dangerous, but just reasonable suspicion.”

This position is adopted by some conservative judges, true judicial activists, such as Brett M. Kavanaugh and David B. Sentelle of the United States Court of Appeals for the D.C. Circuit, who misstated
Terry
in a 2007 gun and search case as a way of giving police more latitude. After a pedestrian had reported being robbed by an armed man wearing a blue fleece, officers stopped a differently dressed man walking nearby, took him to the scene, and unzipped his outer jacket so the victim could see what he was wearing underneath. He was not identified as the robber, but an officer felt a hard object as he opened the jacket, and a further pat-down revealed a gun.

Unzipping the jacket just to see the color of his shirt was upheld by the judges as legitimately investigative, a reading of
Terry
that reached beyond its original rationale. The police had neither reasonable suspicion that he was armed nor probable cause to believe that he was the robber, yet to bolster their argument, the judges distorted the meaning of a 1985 Supreme Court opinion, reading into an ambiguous sentence an expansion of
Terry
that the Court had neither rejected nor accepted. On appeal, they were slapped down by the full federal Court of Appeals in D.C., seven to four.
⁷

Rarely are judges so intellectually dishonest. Many more look scrupulously to precedent. Yet however precise their opinions try to be, in the real life of the street the
Terry
stop has gradually spread beyond its initial concept. Legally, officers still have to suspect someone of carrying a weapon to justify the search, but if the frisk turns up drugs instead of a gun, the drugs can be used as evidence provided the judge believes that the police followed certain rules.

The key to expanding the scope of
Terry
frisks is the “plain-view” concept, devised in 1969 by the liberal Court of Chief Justice Earl Warren to end the common police practice of searching entire homes and offices when an arrest was made. In
Chimel v. California
, the Court overturned precedent and ruled that only criminal evidence “in plain view” could be seized without a search warrant.
⁸

Then, in 1993, the conservative Court of Chief Justice William H. Rehnquist stretched “plain view” into “plain feel.” As long as reasonable suspicion of danger exists to permit a stop and frisk to check for weapons, the justices held in
Minnesota v. Dickerson
, an officer who finds no gun but feels something that he immediately recognizes as drugs can seize them as if they were in plain view. The Minnesota Supreme Court had refused to allow the expansion, noting that a search using “the sense of touch is far more intrusive into the personal privacy that is at the core of the Fourth Amendment.” But the U.S. Supreme Court accepted the corollary. “We think that this [plain-view] doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search,” wrote Justice Byron R. White.
⁹

It was an unusual opinion, because even as the Court established the principle, it suppressed the evidence and overturned the guilty verdict against Timothy Dickerson, who had been spotted leaving a crack house by two Minneapolis police officers. When he saw their squad car, he quickly turned away into an alley, so they stopped him and patted him down. An officer found no weapon but felt a small lump. So far, so good, the Court decided. Then, however, because the policeman wasn’t sure what the lump was, he squeezed it and slid it around until he could tell it was crack cocaine; it turned out to be a plastic bag containing one-fifth of an ounce. If he had been able to identify the object immediately, the justices ruled, the evidence would have been admissible as plainly felt during a pat-down for a weapon. But his further manipulation, after he knew there was no gun, took the search beyond the bounds allowed in a
Terry
stop. Under the resulting opinion, “nonthreatening contraband,” if detected instantly by touch or smell during a
Terry
stop, can be introduced at trial. This has made it easy for the police to look for drugs by inventing a suspicion about guns and then displaying remarkable tactile ability. In such cases, the skeptical judge is a rare breed.

In the decades since
Terry
, the Court has also made it easier to justify the suspicion needed for a warrantless stop. The
Terry
case arose after a veteran officer in Cleveland observed two men strolling back and forth individually, peering into store windows, then coming together for brief conversation, and peering again, then being joined by a third for more consultation. The officer knew the neighborhood, did not recognize the men, watched them case the stores for ten to twelve minutes, and finally approached them to ask their names. When they “mumbled something,” the policeman thought they might be armed, so he grabbed Terry first,
patted him down, felt a gun, and then found a pistol on one of the others as well. State courts and the Supreme Court judged the frisks legal.

By 2000, a divided Court was endorsing frisks with minimal cause. In
Illinois v. Wardlow
, the justices split five to four in ruling that police could chase, seize, and search a man who did nothing more than run from them in a drug-trafficking area of Chicago.
¹⁰
He was carrying a white plastic bag, which turned out to contain a .38-caliber handgun that he sought to have excluded as evidence. The bare majority held that his flight, plus the high-crime location, added up to a “totality of the circumstances”
¹¹
creating “reasonable suspicion” justifying the search.

Wardlow
’s running man was close but not identical to the situation that Sergeant Neill faced when he saw those two teenagers walking away. The boys were walking, not running, and they weren’t carrying a bag. But they were in a high-crime neighborhood afflicted by drugs and guns, which was where Neill’s gun unit operated. The squad, carrying the macho nickname Power Shift because of the intense, perilous time of night it worked, never entered the affluent, largely white areas of Georgetown or Northwest D.C. It concentrated on Southeast and other sections where most residents were black and poor.

Under
Wardlow
, the rules here were different from those in wealthier, whiter parts of town; the Court had included this sort of neighborhood in the “totality of the circumstances,” and so had legalized a brand of profiling, ostensibly one based on geography and crime rates but producing targets by race and class. Yes, Neill conceded, there were probably plenty of illegal guns in Georgetown, but with a difference: The rich folks there weren’t using them to murder each other.

Neill greeted the boys politely: “Good evening, gentlemen.” Against the intimidation of four squad cars and seven cops, his courtesy struck an odd counterpoint. It was his practiced method, his seasoned play at finding a quick rapport within the sudden tension of a confrontation. It was designed to induce “subjects” to consent to the search, thereby waiving their Fourth Amendment rights and avoiding a constitutional test. And most of the time, it worked.

The teenagers were obviously no strangers to this kind of police muscle, and they seemed no more eager than Neill to step up to the line between their rights and his. Anyone who had read the Supreme Court decisions and followed the intricate arguments between defendants and the police might have thought that battalions of idealistic citizens were out fighting for their rights. Anyone with that view of America
would have been stunned by what these hastily departing young men did next.

After Neill said, “Good evening, gentlemen,” they stopped. They raised their hands. Then they pulled up their T-shirts to show that no guns were tucked in their waistbands.

It was the last gesture that was most striking. Nobody had ordered them to lift their shirts. They did so as routinely as airline passengers remove their shoes. The decades of litigation through the courts had loosened the legal leash on officers until all the articulate calibrations of personal rights and police powers now vanished in a swirl and a rush. Even if these young men had studied the case law, they could not have been sure that they had provoked “reasonable suspicion,” and the Supreme Court justices nearby would surely have disagreed among themselves on whether Neill could constitutionally have stopped and frisked the boys against their will.

The officers patted them down and found the reason for their move to leave—two small plastic bags of marijuana—but just confiscated the drugs and let the boys go on their way. The Power Shift was after guns, not weed.

So, the encounter became an invisible incident without a name or a case number, an erosion of the Fourth Amendment never scrutinized by a prosecutor, never challenged by a defense attorney, never adjudicated by a judge, never reviewed by the Supreme Court—but an episode nonetheless, an unrecorded police action that characterized life on the streets of a thousand poor neighborhoods in America.

Again and again, in the nights I traveled with Sergeant Neill, black men who were sitting on stoops, strolling on sidewalks, or standing on corners just lifted their T-shirts when a squad of policemen approached. Some tried to ingratiate themselves with the officers, joking with them, boasting that they had jobs as if to flash a badge of respectability that distanced them from local drug dealers and thieves. Others wore the sullen expressions of men long abused by surly cops and bosses and prison guards. The ritual gave the lie to the Supreme Court’s noble line in
Terry:
“This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.” As I watched men raise their shirts without being asked, I wondered what the justices would have thought of the situation they had helped to create. No Supreme Court justice had ever traveled the nights with Sergeant Neill.

He was now fifty-two years old with twenty-six years on the force, a
white man in a black part of town. He was not strapping, but he was sinewy, stronger and faster than he looked in his baggy blue police fatigues. He wore a sandy gray moustache and spoke his own dialect, a mixture of rural Southern and black ghetto, a patter as rapid as that of a pitchman selling a phony cure.

“How y’all this evening, gentlemen?” he would usually begin affably. Typically, his detail of four to six cars had wheeled into the block and parked at crazy angles in the street. Six or eight officers were approaching the “subjects.” Emerging into the lead would be Neill, such a familiar presence that some residents greeted him: “Gee Gee,” they’d say, or just “Gee.”

“We’re keeping the brothers alive in 2005,” he’d tell his makeshift audience on the street, and then after the turn of the year, he used a colleague’s suggestion: “Stay in the mix in 2006.” Subsequent years had subsequent rhymes, until he retired. Peppering the folks with chatty greetings and coaxing, he’d ask, as casually as if he were angling to bum a cigarette, “Got any drugs or guns this evening?” To the inevitable denial, he’d go on, “So, it’s OK if we search real quick?” If the pedestrian or the driver hesitated, Neill coaxed. “Let’s just get this done real quick, OK?” But he hardly waited for answers. The introduction to a pat-down—“For your protection and mine, OK?”—was less of a question than part of a monologue, and a second of silence between the question and the search was deemed consent. By this standard, Neill prided himself on being able to talk just about anyone into permitting a search, and if there is voluntary consent, then the search is legal even without a warrant, probable cause, or reasonable suspicion.

“You know, the citizens have a right not to be searched,” he told me one afternoon before he hit the street. “You know,” he repeated with the insistent lilt of indignation that a civil liberties lawyer might use, “they have a right not to be searched. If they tell you no, you don’t have any of the indications that there’s guns or drugs in the car, then no is no, and you gotta let ’em go.

“I’m sure we’ve all been on dates where, you know, you try to get a kiss and she says no and then you wait a little while and try to kiss her again and she says no again, and then finally she says, ‘OK.’ No isn’t really no. So sometimes you talk to these guys who said no. ‘Well, you said there was nothin’ in the car, right?’ The guy’s like, ‘Yeah.’ ‘Well, if there’s nothin’ in the car, why can’t I search? You know, what’s the problem?’ You know, you kind of look at the guy like, what’s up?” And that works? “Yeah, a lot of times.”

About 9 p.m., the officers of the Power Shift, some white, some black, some Latino, strolled out of First District on Fourth Street SW, just three blocks from the U.S. Department of Education, and gathered among their squad cars in a nearby parking lot, smoking and joking. They were not rookies. Most were seasoned enough to seem relaxed, although they were about to go hunting in darkness for deadly weapons. When Neill arrived, they mounted up and headed out.

In their lingo, the police officers wouldn’t just look around. They’d “peep the bandits.” They wouldn’t pull over a car. They’d “cut shorty”—swerve in front to cut off the vehicle. If they set up a checkpoint for ostensible safety checks while looking for guns, they’d “pop the block.”

The first stop, to peep the bandits, would be through a couple of alleys off K Street SE, leading into a courtyard among the apartments of a public housing project, Neill explained. “That’s a good spot. It’s where I like to start. I got three guns there.”

The courtyard was full of kids and families relaxing in the summer evening, barbecuing, holding a large birthday party. They gave no cheerful greetings when six patrol cars drove in from all sides and jump-outs flowed through their festivities, but they seemed unfazed, as if this happened every other night. Officers selected a few young men for pat-downs and came up with nothing.