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Wednesday, May 18, 2005

The persecution of Lee and Kan, Part II

(Links to Parts I, III and IV.)

D.A. Waite’s red herring: legal grounds for detention

The encounter between officer Lee and Albert Hopkins involved a detention of Hopkins that preceded his arrest. When early in the encounter Hopkins aggressively pushed his door open at officer Lee and jumped out of his car, Lee pulled his pepper spray and ordered Hopkins to get back in. A key accusation made by Santa Clara District Attorney Peter Waite is that this detention was illegal. According to one line of Supreme Court precedent, detention requires that an officer have “reasonable suspicion,” based on “articulable facts,” that crime may be afoot, past, present or future. (The “reasonable suspicion” standard, and its application to crimes that have not been committed yet, comes from Terry v. Ohio, 392 U.S. 1 (1968), which upheld searches of suspicious men who seemed to be casing a commercial establishment.)

According to court reporting, the efforts of the Lee and Kan defense team seem to have been focused on meeting this “reasonable suspicion” requirement, and they had a pretty good case. Officer Lee had been alerted to Mr. Hopkins presence by a woman who flagged down his cruiser and gave non-specific information about a man in a car who had done something to frighten her. En route another call came in from some alarmed homeowners that a man was ducking out of view in his car. When Hopkins was immediately aggressive towards officer Lee, it was certainly reasonable to suspect that he had acted aggressively toward the frightened woman. His ducking down could have been lying in wait to commit crimes of opportunity against passersby, or he could have been casing for property crime in an area known for property crime.

Officer safety as grounds for detention
As strong as the grounds for reasonable suspicion were in Hopkins’ initial detention, reasonable suspicion was not the proximate rationale for the detention. Officer safety was, and a second line of Supreme Court precedent establishes officer safety as a fully competent stand-alone justification for detention. The seminal case here is Pennsylvania v. Mimms (434 U.S. 106, 111, 1977), where the Court articulated the basic principle that “the safety of the officer—is both legitimate and weighty.” This principle has been expounded in a series of cases involving exactly the issue of the Hopkins case: when the police can, for safety reasons, initiate detention by ordering people into or out of their vehicles.

A recent example is United States v. Clarke, from the 11 Circuit (2003). An officer came upon two men fighting outside to their car, with a third urging them to stop. Upon separating the combatants, the officer ordered the non-combatant to get in the car, in spite of having no reason to suspect that the non-combatant was involved in any criminal activity. This detention eventually led to the non-combatant’s arrest when he was found to have an illegal gun. The court held the detention valid, asserting that: “the interest in officer safety outweighs the liberty interest of a passenger who is not suspected of violating the law.” (At. p. 10 of the PDF.)

In District of Columbia v. Rogala, the D.C. circuit ruled in 1998 that detention for purposes of officer safety is especially warranted when “the officer is alone and feels threatened.” In various Supreme Court cases, the Justices found that both drivers and passengers could be ordered either in or out of their vehicles, however officer safety was best served. (in addition to Mimms, see Maryland v. Wilson.) In all of these cases, the threat to the police officers involved was generic and hypothetical. None of the detainees had done anything to threaten the officers involved, and officer safety was still ruled to take precedence.

In the Hopkins case, the threat to officer Lee was not hypothetical, but was fully realized. When officer Lee told Hopkins to get back in the car or get pepper sprayed, Hopkins answered: “I dare you,” which can reasonably be interpreted as a threat to fight, as Hopkins later did when Lee and Kan tried to arrest him. The Supreme Court addressed the case of especially threatening circumstances (still merely hypothetical) in Michigan v. Summers, 452 U.S. 692, 703 (1981). Detention of people not suspected of a crime was upheld in this case on the grounds that: “The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”

These cases generally involve circumstances where reasonable suspicion is already present for suspects other than the particular detainees in question, but according to the general principles enunciated, this should not be a pre-requisite for giving priority to officer safety. So long as the encounter is legal (as officer Lee’s approach to Mr. Hopkins certainly was) then the “legitimate and weighty” concern for officer safety is properly in play, in which case it “outweighs the liberty interest of a passenger who is not suspected of violating the law.”

Getting back to obstruction
District Attorney Waite, by focusing prosecution arguments on officer Lee’s initial detention of Hopkins, was able to remove from the picture the grounds on which Hopkins was actually arrested. Once Hopkins’ initial detention is seen to be proper, this real substance of the case can be gotten to. In response to Hopkins obstruction of their investigation (most obvious was the lie about not having a driver’s license), the officers decided to arrest Hopkins for obstruction, and in preparation for doing so, ordered Hopkins out of his car. When Hopkins refused, then seemed to be fishing for something in his car, the officers jumped in to again detain him for the immediate purpose of officer safety. It is a toss up whether they were arresting him before they grabbed him for officer safety. In any case, as soon as he started resisting this detention/arrest, resistance is its own offense and Hopkins was arrested for it.

No one who has looked at the case denies that, if the initial detention was legitimate, the arrest and the beating were legitimate (even, by implication, Peter Waite, since he avoided this actual heart of the matter like poison.) If Waite is stupid enough to re-file, his bogus claim that the initial detention was illegal will not catch the defense by surprise again. The initial detention will be shown to be fully legitimate on two independent, fully competent grounds. There was reasonable suspicion that Hopkins was looking to commit a crime of opportunity, “past, present or future,” and officer safety clearly warranted detention. Bring it on Waite. Your red herring will be annihilated, the case will reach the merits, and you will stand exposed for trying to punish what your own expert witness described as a “textbook perfect” arrest.

Did I forget to mention that earlier? When Waite saw that the expert’s report was exculpatory he refused to take possession of it, pretending that he therefore did not have an obligation to turn it over to the defense. The defendants only found out about the report through other channels. This from a prosecutor who is charging the POLICE with perpetrating wrongs under color of authority.

End Part II. Links to Parts I, III and IV.

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