Wednesday, May 18, 2005
The persecution of Lee and Kan, Part III
“Contact” and the 5th Amendment
The prosecution’s last redoubt is the claim that officer Lee was acting illegally by even approaching Mr. Hopkins, after Hopkins told him to go away. This claim is completely untenable. Detention and arrest constitute “seizure” and hence are regulated by the Fourth Amendment’s protection against “unreasonable searches and seizures.” That is where the “reasonable suspicion” requirement for detention comes from. But mere contact and the posing of questions does not constitute seizure and hence is not regulated by the Fourth Amendment.
The key precedent here is United States v. Mendenhall , 446 U.S. 544, 552 (1980), where the Court clarified “[t]he distinction between an intrusion amounting to a ‘seizure’ of the person and an encounter that intrudes upon no constitutionally protected interest…” For guidance, Mendenhall looks to the reasoning of Terry (op cit.), citing Justice White’s opinion that:
"[t]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets," [Terry], at 34. Police officers enjoy "the liberty (again, possessed by every citizen) to address questions to other persons," id., at 31, 32-33 (Harlan, J., concurring), although "ordinarily the person addressed has an equal right to ignore his interrogator and walk away." Ibid.Hopkins telling officer Lee to go away does not carry any more force than if he were to tell ME to go away. I don’t have to go away. I can still ask him questions. I can ask him what the hell he is doing huddling beneath the dashboard of his car. I can ask him what he did to scare that woman, and so can officer Lee. Hopkins is free not to answer and he is free to leave, until such time as he is detained.
This isn’t to say there are no limits on non-consensual questioning. If it goes on long enough and with enough show of force, the 9th circuit ruled in Morgan v. Woessner (1993) that questioning can mislead the questionee into believing that that he is not free to leave, which could then constitute seizure. Still, questioning cannot in itself constitute seizure, and officer Lee’s questioning of Hopkins was as mild as can be imagined. In his first approach Lee asked Hopkins if he was okay. When Hopkins started cursing and told Lee to go away, Lee first withdrew, then returned and asked Hopkins if he had a driver’s license. That’s it. Hopkins then blew up and got himself detained in his car on grounds of officer safety.
Officer Lee posed just about the theoretical minimum of non-consensual questioning. He asked if Hopkins had a driver’s license. If that is allowed to constitute “seizure,” then there is NO distinction between questioning and seizure, in direct contradiction to the Court’s assertions in Mendenhall. Waite’s position—that officer Lee should have ceased questioning “as soon as the man told them to stop hassling him because he was black”—is a straight rejection of the Court’s assertion that questioning and “seizure” are NOT the same thing. At some point, enough forceful non-consensual questioning can become Fourth Amendment “seizure,” but that point CANNOT be reached immediately.
If you look at police department guidelines for field interrogations, you will see that they generally instruct officers that, if a person does not want to answer questions, officers are to “back off and not talk,” unless there is a “reasonable suspicion” grounds for detaining them. Officer Lee’s supervising officer, Rebecca Phillips, testified to this instruction for Palo Alto officers. But the purpose of these instructions is not to keep officers from violating any statutory or constitutional law. The purpose is to protect the admissibility of evidence under Miranda rules. Coerced confessions are illegitimate under the Fifth Amendment’s right not to incriminate oneself and non-consensual questioning raises the question of whether answers are truly voluntary. To keep cases from getting thrown out on technicalities, police departments instruct officers to give Miranda type concerns a wide berth.
Set aside for the moment all the grounds for reasonable suspicion in the Hopkins case. Even in the absence of reasonable suspicion, there is still every difference between police actions that can in themselves be illegal (detaining people when there is no reasonable suspicion that a crime has been or will be committed), and police actions that might taint evidence but are not illegal (Miranda violations). People cannot be prosecuted for things that are not illegal, but that is what Waite is doing. The “punishment” that keeps officers from improper questioning under Miranda and related rulings is the exclusionary rule: that answers received might not be admissible in court. There is no criminal sanction. The purpose of “back off and don’t talk” policies is to preserve the admissibility of evidence, not to keep from breaking the law.
If officer Lee had detained Hopkins in his car on the strength of Hopkins’ driver’s license lie, there might be a very tenuous case that the detention was flawed, and that evidence proceeding from it could not be used to prosecute Hopkins. But officer Lee did NOT detain Hopkins for his driver’s license lie. (Hopkins voluntary answer to that question had not yet been revealed to be a lie.) Lee detained Hopkins for purposes of officer safety when Hopkins became physically aggressive. It is conceivable, under the most egregious over-reading of the egregious Miranda precedents, that officer Lee might have managed to taint a piece of potential evidence. It is not conceivable that this possibly imperfect questioning (and the contact under which it occurred) was ILLEGAL.
That sinks any argument that Hopkins’ detention was illegal because the contact that preceded it was illegal. The contact was perfectly legal and so the legality of the detention has to be considered on its own, and as we saw in the previous section, the detention was clearly legal on grounds of officer safety.
What does the 5th Amendment really say?
The Supreme Court has recently re-injected a little sanity into its 5th Amendment jurisprudence. Last year the Supreme Court clarified the application of the Fifth to police investigations when it upheld the conviction of a Nevada man for refusing to give his name during a routine investigation. The Court ruled that a person’s name is public information and that revealing one’s name cannot by itself constitute self-incrimination under the 5th Amendment. That is, the Court has started to move away from the fabricated “right to remain silent” and has taken a step back towards the actual right not to incriminate oneself.
By this standard, what 5th Amendment claim could Hopkins possibly make? How does a supposedly innocent man need to be allowed to be physically aggressive, verbally belligerent, give misleading information, and refuse to get out of his car, in order to not incriminate himself? Yet all of these actions obstruct the police in the performance of their duties, giving grounds for arrest. The right of citizens not to incriminate themselves does not imply a right not to be questioned for suspicious behavior, even if you do say: “stop hassling me because I’m black.”
End Part III. Links to Parts I, II and IV.