The Rights of the People (15 page)

“Get out, man,” Neill told a driver, then frisked him. Two cars were being searched at once, then another and another. When Neill couldn’t find the lever to open a trunk, the driver, leaning on the trunk in frisk position, gave him a clue: “It’s in there. You want me to show you?” Neill answered, “Yeah, come around.” And the driver obliged.

The owner of another Cadillac SUV said a search was OK, then got out of the vehicle and was surprised when he was patted down. “Checking me, too?”

“You ain’t got a gun, do you?”

“No.”

“We don’t want anybody gettin’ shot up.”

After five minutes and a couple of tickets written, the roadblock vanished, the nation’s capital having been kept safe from unlicensed drivers. No guns yet tonight.

As we drove into darker, narrower streets, Neill got a radio call. A man was running through an alley. For the first time that night, the sergeant grabbed the shotgun from between our seats, jumped out, and gave chase. Around the corner, cops surrounded a black teenager, tall and lanky with long hair and glasses. A black officer said he’d seen him throw a plastic sack containing ten ziplock bags of weed. “I didn’t have anything,” the kid insisted.

“I was right there,” the cop came back. “You didn’t, my ass.” When another officer said that he had also witnessed the young man throw the marijuana, the kid’s denials dissipated.

“We don’t always lock ’em up for ten bags,” Neill explained to me. “We’re looking for guns. That kind of shit just slows us down.”

So, instead of subjecting the youngster to the judicial system, the Power Shift exacted its own kind of justice by confiscating the weed and giving the criminal a hard time. A good defense attorney can often sow the seed of reasonable doubt that the drugs found on the ground actually belonged to the defendant and that the cop is truthful about seeing them tossed. So a trial is not always worth the time and the gamble.

A young white officer took the teenager’s license to a squad car with a computer uplinked to the WALES database. “No record,” he called out.

“Anything in your house you want to surrender to the police?” asked Neill.

“No.”

“We gonna take you home, tell your mama what you been doin’.” She was at work at the post office, the kid said. Neill asked for her cell number, got it, and called, but she didn’t answer. “Today’s your lucky day,” the sergeant told the young man. “I see you again, you’re goin’ to jail.”

Another officer chimed in. “You can’t be goin’ to jail. You like sex, man? They like sex, too. They like somebody fresh like you.”

“Yeah, that long hair to hang on to,” a third cop added.

Having made the threats, scared the young man, and taken the pot, the Power Shift moved on. They looked through a car where they thought they smelled marijuana—thereby giving them probable cause to search—and found nothing. They had a few bizarre encounters along Benning Road with residents who had been smoking something stronger, it seemed, for they mouthed off incoherently as the squad frisked them and searched their cars. One young woman, babbling noisily, was taken aside gently by
an African-American officer who quietly calmed her down. “That’s the guy we call the Reverend,” said Neill. Every police unit ought to have one.

In Iraq, Neill had learned a technique he brought back to Washington: how to set up roadblocks by staggering boulders in the road to force cars to slow and weave. This he usually did near RFK Stadium in the early morning hours when people drove home from clubs. “This is where the Badlands meet America,” he told me.

Tonight, though, the squad used their cars instead of rocks, leaving just enough space along the one-way, three-lane road to allow vehicles to squeeze through. They parked one cruiser facing the wrong way on a ramp, ready to give chase if anybody tried to avoid the checkpoint by backing up. That happened three times on this shift, but only once did two officers race for their car and roar after the offender, who followed normal procedures in this part of town: When you have drugs or guns in your vehicle, and sirens and lights materialize, you do not obediently pull over; you floor it and hope to outrun the cops, which this driver managed to do.

Working efficiently, the Power Shift stopped most cars long enough to go through the act of checking licenses and look over the driver and passengers and decide whether to seek consent for a search. An older man, possibly Latino, was waved through, as were nearly all the women. Only black men from their late teens to their late forties were targeted. Vans or SUVs that seemed fancy, and men with cornrows or braids or baggy clothes were scrutinized closely. Neill said he was looking for people who betrayed nervousness by glancing around inside their car, who answered evasively, who couldn’t find their licenses because of the jitters.

Officers engaged in brief conversation, mostly monologues: Got any guns or drugs, man? Mind if we search? Get out of the car, man. Don’t want anybody to get hurt. “Got anything in the vehicle I should know about?” one officer asked. “Maybe a little bit of weed?” Then came a quick pat-down, a search of the passenger compartment by two or three officers, who rarely went into trunks, and a wave and a goodnight.

When Neill explained that they were trying to get guns off the street, one driver pulling away cautioned, “Y’all be careful, man.” It sounded more like a friendly warning than a threat. Another driver turned out to be a fireman, which reminded Neill of the time they got a gun off a Metro bus driver. A black woman who recognized the sergeant shouted, “Gee! Give me a hug!” and Neill did, through the window. “I love ya, baby!” she yelled gleefully as she drove away, and he smiled sheepishly.

One driver had an open can of beer and a blackjack, its lead cylinder
covered in dull black leather. The cops poured the beer onto the ground and confiscated the blackjack. Another had a bag of marijuana in the front seat, seized as well. The squad didn’t bother making arrests or writing tickets, though. They were highly focused on their mission.

About a dozen cars were searched thoroughly in forty-five minutes, all after their drivers had given consent.

“Mind if I search?” a white sergeant asked a black driver.

“No.”

“I appreciate it,” said the sergeant, and then, after he poked his hands around and beneath the front seat only, not the back, he waved the man on with a “Have a good night.”

Then a dark sedan came up swiftly, as if trying to slip past the checkpoint. Neill saw the way he was driving and signaled him to a stop. Their conversation was soft, mumbled, and I was too far away to hear it. Neill’s reconstruction later was typical. When the driver asked the reason for the stop, Neill answered that they were checking licenses. The driver couldn’t find his, and this was interpreted as a sign of acute nervousness. “Can I search?” Neill remembered asking. “Sweat starts dripping off him. He kept looking down.” He gave permission, though.

Neill said he’d then got the man out of the car and, when he patted him down, felt a broad belly belt fastened with Velcro, the kind a weight-lifter would use. The belt was stiff and hard and might be expected to conceal a gun. Neill said he’d felt a tip of the handle above the belt, and pulled it out—a nine millimeter Luger. Neill beckoned me closer as the man was handcuffed, and I saw another officer undo the belt. Out fell a magazine clip full of ammunition.

The driver was practically crying, and he flashed that badge of decency, saying, “I got a job at Pepco,” the local electric company. He was coming from a workout, trying to lose weight, he said. “I ain’t hurt nobody, brother, never in my life.” But the computer in one of the squad cars listed him with a prior conviction. Pepco job or not, Neill said to me, this man “can’t stop being a thug.”

They had gotten their gun for the night. It was 1:45 a.m., Neill had a couple of hours of paperwork to do, and other officers had court appearances the next morning, which meant little sleep and lots of overtime. So we stopped for gas at a Sunoco station, went to a 7-Eleven for some coffee, then cruised back to the First District headquarters.

Hardly any of the searches had been justified by probable cause or even by the lesser standard of reasonable suspicion. The Power Shift had relied almost entirely on citizens’ acquiescence. While officers combed
through vehicles, I asked drivers who were sitting on curbs or leaning on trunks whether their permission had been requested. Some looked blank, as if they hadn’t known that a policeman had to ask and that a citizen could say no.

In 1973, the Supreme Court ruled six to three, in
Schneckloth v. Bustamonte
,
⁴⁴
that the police did not have to inform people of their Fourth Amendment right to refuse a search, unlike the Miranda warning required before waiving the Fifth Amendment right against self-incrimination. In dissent, Justice Thurgood Marshall accused the majority of allowing “the police to capitalize on the ignorance of citizens so as to accomplish by subterfuge what they could not achieve by relying only on the knowing relinquishment of constitutional rights.”

An uninformed public removes a burden from police work, and when a lack of knowledge is combined with a coercive atmosphere, the searches move along rapidly. Even if you know you can say no, you’ve got to make a quick calculation about whether or not to exercise your right to refuse. When you’re a black man surrounded by cops late at night, can your consent really be “freely and voluntarily given,” as the case law requires?

It seemed easy to induce the citizens of the nation’s capital to relinquish one of the Constitution’s key liberties. Those drivers who told me that they had been explicitly asked gave a simple reason for consenting: “I ain’t got nothin’ in there,” as one man said. It was his version of a response typical of a large segment of Americans who don’t mind surveillance because they have “nothing to hide.”

If I hadn’t seen this massive apathy about rights with my own eyes, I might not have credited the claims of another seasoned sergeant, J. J. Brennan, who still, after over thirty-five years on the force, had a slight melody of surprise in his voice as he told of drug couriers letting him search their suitcases—and they certainly had something to hide. It happened in Washington, D.C.’s Union Station, where Brennan had set up a drug interdiction unit of seven detectives in the late 1980s.

With the advice of an Amtrak police officer who had run a similar unit in Dade County, Florida, Brennan developed observation and interview techniques that narrowed the flood of passengers walking through the station to a trickle of potential dealers and couriers. He read the relevant Supreme Court opinions and figured out how to gain consent without being coercive.

Coercion is often in the eye of the beholder, and the Court usually looks through the eyes of the police. As Justice O’Connor recapitulated the case law as of 1991, “The Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.… The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature.” She was writing the majority opinion in
Florida v. Bostick
, which extended that police authority to a passenger on a bus that was about to depart. While he couldn’t walk away without missing his transport and abandoning any luggage stowed below, the Court found that he could still have rebuffed two officers’ request to search a bag, where cocaine was discovered. In other words, as long as a person is free to ignore the police and go about his business, the questioning is just a conversation and not a “seizure” under the Fourth Amendment.

There are few areas of the law where the sterile abstractions of the Supreme Court seem more out of touch with reality. The majority’s notion that a passenger could feel perfectly free to say no, while confined in his seat by two armed policemen blocking the aisle during a drug sweep, seemed absurd to Justice Marshall, whose career as a civil rights lawyer had given him plenty of opportunity to understand the dynamics of police bullying. The passenger had only two undesirable options, Marshall noted in his dissenting opinion: to push his way past the policemen and leave the bus, or: “He could have remained seated while obstinately refusing to respond to the officers’ questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers’ suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger’s refusal to cooperate.”
⁴⁵

Sergeant Brennan pictured himself as steering well clear of coercion in Union Station. “You’re walking on a very thin line,” he conceded. But he knew the law cold, and most of his subjects did not, and that gave him an edge as he approached railroad passengers who fit his profiles of likely suspects.

There were indicators of manner and dress. “It was known that females carrying drugs and males carrying drugs would do away with their jewelry,” he said. “Jewelry was a big thing—gold chains and bracelets, flashy.
Drug dealers were flashy back then, so they were dressin’ down” to look inconspicuous.

His officers ignored passengers who were met by others, since couriers didn’t hand off the goods in public. Women who stopped to gaze into store windows were also ruled out. Brennan’s attention went instead to any woman who was so focused on getting on her way that she breezed past shops in the station without so much as a glance. “When have you ever known a woman to pass by a clothing store and not take a look?” he asked. It seemed a flimsy clue, a profile that might also fit a corporate lawyer on a tight schedule.

Once someone was chosen for an approach, the detectives tried to be low-key. In plain clothes, they wore no police emblems, no jackets saying
POLICE
. When they introduced themselves as police officers, “we showed them our identification with our picture on it,” Brennan noted. “We thought it was more personable than drawing a badge on them.” Then the conversation would begin.