The Rights of the People (14 page)

Atwater and her husband sued the town for damages, and as the case made its way up to the Supreme Court, their lawyers assembled an expansive historical argument. They contended that English common law and the framers’ intent confined misdemeanor arrests to breaches of the peace. The Court’s slim majority rejected the assertion. The historical record was mixed, at best, Souter wrote. He found no evidence that the framers sought such limitation. On the contrary, state legislatures at the time authorized nonviolent misdemeanor arrests. In early years after independence, American laws permitted arrests for profanity and violating the Sabbath. And he found much in English statutory law, some dating back to the thirteenth century, to riddle any common-law protection. A 1285 act authorized the arrest of nonviolent minor offenders, such as “nightwalkers,” strangers who happened to walk through town at night. “One 16th-century statute, for instance, authorized peace officers to arrest persons playing ‘unlawful game[s]’ like bowling, tennis, dice, and cards, and for good measure extended the authority beyond players to include persons ‘haunting’ the ‘houses, places and alleys where such games shall be suspected to be holden, exercised, used or occupied.’ ” Centuries later, Americans might fairly shudder as antiquated indignities are absorbed into modern jurisprudence.

The majority noted that all fifty states and the District of Columbia permitted arrests for misdemeanors that carried no jail time, and that those measures had withstood judicial challenges. (D.C. had changed the law and exempted most traffic offenders from arrest, frustrating old-timers on the police force who remembered nostalgically the days when a couple of outstanding tickets got you busted and your car searched.) Souter’s key point was not that the Atwater arrest was justifiable—indeed, he and the majority found it full of “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment.” But the justices did not think that one policeman’s overreaction should
induce the Court to ban all such misdemeanor arrests and thus “mint a new rule of constitutional law.”

The fudge factor in the text of the Fourth Amendment is the word “unreasonable,” which presents judges with latitude for indulging their predilections for or against police power. Courts have held that to be reasonable, an arrest must balance two competing factors: its intrusion on personal privacy versus its weight in promoting government interests, as O’Connor noted in her
Atwater
dissent. She was known as a pragmatic justice, rooted as much in the real-life impacts of decisions as in their constitutional principles. Unlike Souter, she saw no problem deciding each case individually, and she accused the majority of minting its own “new rule” permitting an arrest for “even a very minor criminal offense,” as the majority itself had characterized the seat-belt incident.

But seven years later, in 2008, she joined a unanimous Court in giving the police latitude to arrest and search drivers even where the law authorized nothing more than a summons. A Virginia man, taken into custody for driving on a suspended license, was personally searched—standard procedure incident to an arrest—and crack cocaine was found. He lost his argument to have his arrest declared illegitimate and the drugs excluded from evidence.
⁴²

Traffic stops and car searches have been among the most confusing and difficult areas for the courts. Case law holds that warrantless searches accompanying arrests are justified for two purposes only: either to preserve evidence or to protect officers from hidden weapons. But these are fragile limits on police power, drawing support from only a slim majority of five justices in 2009. They barely ruled for an Arizona man who had turned into his driveway, parked, gotten out, and was then arrested for driving with a suspended license. After he was securely handcuffed and locked in a patrol car, the officers searched his vehicle, where they found a jacket with crack in a pocket. The five in the majority found the obvious: that the detainee could not have gained access to any gun that might have been in his car, and that the vehicle could not have contained evidence relating to the cause of his arrest, the suspended license.
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The usual characters who claim Fourth Amendment violations are not sympathetic types, because their crimes seem clear: They’ve been caught red-handed with drugs or guns or stolen goods and are seeking to suppress the incriminating evidence. They generate little popular support, unlike Gail Atwater.

She was just a “soccer mom” trying to find a lost toy. Fine, upstanding citizens could identify with her, since she lived within their circle of decency. Yes, she showed a lapse of judgment about safety, but she was no hardened drug dealer armed with deadly weapons. Had her arrest led to a vehicle search that uncovered guns and narcotics, she would have earned condemnation rather than the compassion she won as the mildly careless mother, handcuffed and dragged away in front of her small children.

But the constitutional question would have been the same. When the Bill of Rights is violated, it’s usually hard to mobilize public concern, because the most obvious victims are the least admirable—accused criminals whose cases become the means through which courts regulate police behavior by applying the Constitution. And the resulting constitutional interpretations apply to everyone. The system, then, binds together the miscreants and the righteous: The most virtuous among us depend on the most villainous to carry the torch of liberty, for when the courts allow a criminal defendant’s rights to be violated, the same rights are diminished for the rest of us. As the bootlegger Carroll, the pistol-packing Terry, the gun-toting Wardlow, the drug-pushing Ross, and the pothead Acevedo lost some of their Fourth Amendment protections, so did we all.

Most citizens who are searched without giving voluntary consent don’t go to court for the simple reason that they are entirely innocent. No evidence is found, and so—assuming the police are honest—no charges are brought against them. Yet they have been violated fundamentally. Unless they sue the police for damages, which is extremely rare and more rarely successful, their experiences add up to an invisible record across the United States of countless unconstitutional searches.

Each night, the Power Shift leaves dozens of such victims in its wake. Rushing through blocks and courtyards, the officers consider the entire shift a success if a single gun is found, even when numerous innocents are stopped and frisked, their cars searched, their dignity assaulted, their zones of privacy invaded for naught. If a ballplayer batted with such a low average—one for thirty in this typical shift—he wouldn’t be a ballplayer for long. But the officers don’t keep track of the fruitless searches, and neither does anyone else. Instead, they reason that “it discourages them from carrying a gun,” Neill explained. “If you keep ’em pressured, they won’t bring the guns outside,” and a gun left home means a few more minutes to cool off before using it. The judicial process, it seems, is only incidental to crime prevention.

On this June night, as Sergeant Neill got ready to take his men into the streets, he sat typing in a bare cubicle at the First District station house.
To guard his privacy, he used his personal laptop instead of a department computer: He didn’t want the police department snooping into his files, he explained, or observing when he logged on and off. He wanted to compose his response to a complaint, a Form 119, without being monitored.

Neill was peppered with complaints. He seemed miffed at this one but tried not to let it show much. It was from a driver whom he had pulled over for having tinted windows and a device that made the sound of a police “sirene,” as Neill spelled it (pronouncing it “si
reen
”). Neill had to justify frisking the driver, which he did by reporting that the man had seemed nervous enough to make Neill think there might be a gun. There wasn’t.

Nothing much seems to result from such complaints. Officers treat them like minor irritants, although when they’re introduced into evidence—as judges occasionally allow defense attorneys to do—they can discredit police witnesses, especially among black jurors from poor neighborhoods where they’ve seen cops in action. Neill had lost some convictions as a result, but he usually reacted with that standard police philosophy: “We’ll get him next time.”

It was close to 10 p.m. when Neill folded up his laptop, took off the bright red Hawaiian short-sleeved shirt he was wearing, put on a uniform shirt, and walked out to the nearby parking lot, empty at this hour except for three marked cars and six officers hanging around waiting for him. Neill went off to get a squad car of his own, and we began with his favorite starting point, the alley between K and L Streets SW, which ran into a courtyard behind some two-story apartment buildings.

As the officers swept in from two directions, the residents barely reacted, accustomed as they were to the invasions. It was a warm Wednesday, and lots of folks were outside, some sitting in tiny fenced-in patios or yards, a few girls looking pretty high while dancing to music from a boom box. The smell of pot was in the air. Neill frisked one young man, and the rest of the squad spent a few minutes sweeping the ground with the beams of their flashlights. They came up with a small potato-chip bag containing marijuana, but no owner. A man so huge he was oozing out of his folding chair caught Neill’s eye. “The big fat guy sold me drugs in 1994,” he told me, and they nodded politely to each other as the sergeant strode by.

We headed toward Benning Road, and on the way I asked Neill what he thought people felt when he searched them and found nothing. “Relief,” he answered. “You’re not dealing with people who go to church.” But you are dealing with people who may get onto juries, I noted.

On H Street and North Capitol, we came up behind a vehicle that seemed designed to command police attention: a dark sedan with tinted windows and plates that read “
RATBABY.
” Neill radioed the squad car ahead, which stopped and blocked him. Two black men were in the front seats, the driver chatting on a cell phone. Neill quickly had them out of the car and frisked. “I got nothing in there, so you can search it,” he later quoted the driver as saying. Nothing was found.

Cruising into an alley off H and Sixth Streets NE, the lead squad car doused its lights. “We call it the stealth mode,” said Neill. “We ain’t supposed to do that.” He pulled up next to a gray sedan that was parked illegally, the driver sitting behind the wheel, which was secured with a locked antitheft bar.

The parking violation gave Neill and his colleagues the legal hook they needed for an encounter, a gaze through the windows, a conversation that they always hoped would get them inside the car. So, a little charade began. The driver, a black man in his thirties, defended himself in tones of sincerity against the grave parking violation that had brought seven officers in four cars swooping down on him, mobilized to stamp out this parking scourge that afflicts back streets. He claimed that the car belonged to his mother, who lived in the row of houses along the alley. (A young black man under the siege of the gun squad often seems to think that he’ll inspire sympathy by noting that he has a mother—all the better if he can convince the officers that the little old lady who brought him into the world is actually the owner of the decal-covered SUV he’s driving, with beads swinging from the mirror and a woofer that sounds like the muffled thud of distant artillery when the tinted windows are closed.) “We always park right here,” the driver declared in a charming confession, as if his record as a serial parking offender would end the surreal scene. But Neill asked the man to get out of the car, frisked him, then teamed up with another officer to search the vehicle. “I used to have a truck, parked it right here,” the driver continued, playing along. Then, as if to underscore his naïve ignorance of the momentous crime, he even called his mother on his cell phone so the police could hear his lilt of innocence. “Mama, I’m out back. Police here. They say we can’t park out here.”

Later, the cops had a laugh about this big man calling his mama. The man may have had his own laugh about disarming the cops with deference. He’d played the game, letting them think they’d fooled him with concern over an infraction they didn’t even give him a ticket for. Had the officers gone on to find a weapon, they would surely have written a parking ticket to make the case legitimate.

“Did you say they could search?” I asked him. I hadn’t heard him give consent. He looked baffled by the question and didn’t answer. “He gave permission,” Neill said later. “He was real nervous.” Neill seemed to think that unless a black man has guns or drugs, he shouldn’t be nervous when surrounded in a dark alley by seven cops, most of them white. But this unreasonably nervous man had no guns or drugs, and I came out doubting that Neill could really tell. The Power Shift’s averages in finding guns were probably no better than what would have turned up by doing random stops of males between eighteen and forty-five in these dangerous neighborhoods. Random stops were not constitutional, however; a pretext was required, often of the slimmest sort.

And so it went late into the evening: Three men frisked at G and Seventh Streets NE; “All right, Gee,” one said in assent. A lone man frisked in an alley adjacent to a playground. Three men who bolted and ran safely into a house. Another running man, whom Neill tried to catch by climbing nimbly over a locked chain-link fence, but who escaped through a warren of alleys and courtyards. Several guys walking up an alley, stopped and frisked. Three men on a stoop at Twelfth and I Streets NE, frisked while Neill chattered at them: “Wha’s up, fellas? Got any guns or drugs? We searchin’ for drugs and guns.”

“Go ahead,” one said.

And then, the first checkpoint of the night, a “pop-up roadblock,” as they called it. Prompted by a Cadillac Escalade with no front tags, the squad decided to stop everyone, so Neill parked in the middle of H near Twelfth NE. “Let’s get ’em all,” he radioed to his men. Straight-faced, they pretended that their checkpoint was aimed at checking licenses and registrations, since the Constitution, as interpreted by the Supreme Court to date, did not permit roadblocks for the Power Shift’s purpose of finding guns.