Prosecuting Police for Trespass

December 10, 2015

by Jay Marshall Wolman

In a comment to my post announcing the formation of the Third Amendment Lawyers Association, reader Angie NK asked for some Ninth Amendment love. I’ll get there, Angie, I promise.

But, before I do, I had some questions and thoughts about #3’s neighbor, the Fourth Amendment. The Third Amendment protects the home from a chronic invasion–the quartering of soldiers.  The Fourth Amendment protects the home from an acute invasion–improper police searches.  As a refresher, the Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Normally, we think of the Fourth in terms of evidentiary suppression in criminal matters.  But that jurisprudence really didn’t come about until 1914 in Weeks v. United States, and didn’t apply to the states until 1961 in Mapp v. Ohio.  So, what was the role of the Fourth Amendment before then?

To begin, what is a Warrant?  Presently, we think of it as a piece of paper that police show to someone that lets them go ahead, look around, and take things.  But, basically, a warrant is a get-out-of-jail-free card to the holder, that so long as they comply with the terms thereof, they will not face legal liability.  “Warrant” does not actually mean permission; rather it is related to the word “Guaranty”.  (Side note, this is a linguistic doublet, reaching English from the same roots, along different paths, like Ward and Guard.)  It is a written guarantee for the holder.  Thus, the holder of an arrest warrant is not liable for otherwise kidnapping the suspect, and the holder of a death warrant is not liable for otherwise murdering the inmate.  With that in mind, what does a search warrant guarantee?  It guarantees that the holder is not liable for trespassing upon your premises and stealing your stuff, which is normally what would occur if someone started snooping and taking your things.

Nowadays, we don’t really think about warrants in these terms.  We focus on whether a seizure is reasonable (e.g. Terry stop) or whether evidence should be suppressed based on a direct violation or as fruit of the poisonous tree.  But, let’s look at your standard scenario:  the police enter your premises without a warrant, see your stash, seize it, and prosecute you for a drug crime.  Your criminal defense attorney does a whiz-bang job of proving the warrantless search was unreasonable, the evidence is suppressed, and you go free.  Now, you don’t get your stash back, because it is contraband, but any other items taken really shouldn’t have been.  In effect, the police officers illegally entered your house (breaking and entering) and deprived you of your property (larceny, burglary), while armed (robbery).

Seems to me, that is probable cause to prosecute the officers for their unlawful actions and that a civil action would have merit.  Certainly, the officers would have an opportunity to contest this (after all, the State losing the evidentiary hearing isn’t binding on the officers who did not have personal counsel involved in the process), but since they had no Warrant, they are not immune from this process.  And the State would not really be arguing both sides–once it lost in the evidentiary proceeding, there is nothing wrong with acknowledging it was found wrong and is now on the side of right.

As a matter of policy, perhaps we might not want to criminally prosecute police, but then why prosecute any public official for honest services fraud?  If the search and seizure was wrong, and there was no Warrant or the scope of the Warrant was exceeded, then those acting unlawfully should face punishment.  (I am not, of course, advocating for prosecution where there was a Warrant issue, but the Warrant was issued improperly, unless it was the knowingly improperly procured.  Otherwise, that would undermine any warrant as no officer would trust its reliability and carry out its purposes.)  Similarly, the police departments themselves should suspend or terminate those who unlawfully search and seize, just as they should those who use excessive force.  In all of those cases, the rights of the citizen have been abused, and the public deprived of the officer’s honest services.    If we want to be tough on crime, we need to be consistent and not give a pass to those who break the law without a Warrant to do so.  Otherwise, it seems to be selective enforcement that should not survive Oyler v. Boles–only enforcing against the class of person who are not police.


“Show Me Your Papers!” – Not new law…

April 29, 2010

by: Jonathon C.A. Blevins

The sky is not falling…

The new AZ law requiring law enforcement to inquire as to the legal status of its population is a hot button issue. The reason the issue is so hot is that the law is targeted at illegal immigrants, undocumented workers, aliens, or whatever politically correct noun is currently popular. I will concede the facts surrounding the passage of the law are unpalatable. However, the law is probably consitutional. Further, the request for “your papers” is similar to a request for “your driver’s license or ID.” (The analysis assumes the law will require LEOs to inquire to EVERYONE about legal status).

I cannot postulate on the status of AZ law. But, I am familiar with the law of the State of Florida. Thus, I will provide analysis of the AZ law as if it were passed by the FL legislature. Hopefully, the readers can ascertain that the below is an analysis of the law and not a pro/con law enforcement argument. Regardless of your feeling regarding LEOs, the status of the law is, well, the status of the law.

Law enforcement is allowed to inquire into the legal status of the population provided LEOs follow certain procedures. If LEOs do not  follow the procedures, the remedy is suppression of evidence and/or release of detainee.

So long as LEOs do not use the legal status inquiry as a basis for any of the following, the Fourth Amendment will not be triggered. If the sole basis for detention or arrest is to inquire about legal status, it is clear that all evidence from the detention would be suppressed.

Florida recognizes three levels of police-citizen encounters or “lawful police contact”:

1. Consensual encounter

2. Investigatory stop / detention

3. Arrest

Popple v. State, 626 So.2d 185, 186 (Fla. 1993).

In a consensual encounter LEO is allowed to approach any individual and inquire about any topic, including proof of identification. The test for a consensual encounter is whether a reasonable person would think he/she was free to leave. Whether a person is free to leave is a test of factors: the number of officers, tone/language used by LEO, display of weapon, blocked path, lights/sirens, whether the officer ordered anything (not an exclusive list). During a consensual encounter, LEO is allowed to ask for ID/DL/Proof of legal status.

The LEO is allowed to approach an individual at any location and ask any question. The responses to questions are not subject to Miranda and the answers may be used against the individual. Further, the LEO can search the individual with consent. The key to a consensual encounter is the individual sets the parameters for the encounter. The individual may refuse to answer any question posed by the LEO. The individual may walk away from the LEO and refuse to produce an ID. During a consensual encounter, the LEO is at the mercy of the individual’s consent.

An investigatory detention/traffic stop (aka Terry stop)  the parameters are narrower. The encounters must be supported by reasonable, articulable facts that create a reasonable suspicion the individual has committed, is committing or is about to commit a crime. The totality of the circumstances will determine whether the LEO acted reasonably in detaining an individual.

If the LEO is able to articulate facts that lead to a reasonable detention of the individual, LEO can ask for ID. However, unlike a consensual encounter, the individual does not have the right to refuse. Thus, the individual will be compelled to answer investigatory questions. The questions are not always subject to Miranda. In fact, in a DUI case, the LEO is explicitly allowed to ask questions about the charge without reading Miranda.

LEO are permitted to detain a suspect as long as necessary to effectuate the purpose of the stop/detention.  It is a reasonableness test. So, if the LEO has a reasonable suspicion of criminal activity, the individual will be reasonably detained and compelled to produce ID/DL/Proof of legal status.

The arrest is the most obvious type of LEO-citizen encounter. If the individual is formally arrested and questioned, the individual must be provided Miranda warnings. The individual is not free to leave. The LEO may formally arrest someone if probable cause is established. Probable cause lies somewhere between reasonable suspicion and proof beyond a reasonable doubt that a crime was committed, is being committed, or is about to be committed. Even if the person invokes Miranda, the individual will be compelled to produce ID/DL/Proof of legal status…at the time of arrest or at booking.

The analysis above is not mind blowing. In fact, the analysis is basic. The fact that the analysis is so basic is what astounds me about the outcry against the AZ law. If LEO follow the above parameters, no Fourth Amendment violation will occur. The request for production of ID/DL/Proof of legal status will not run afoul of  precedent or the basic reading of the Fourth Amendment.

As for FL, in order to get a DL, you must produce proof of identify, social security and residence .    Thus, if the LEO asks for ID, you are producing proof of citizenship…guess what? No Fourth Amendment violation!

If LEO does not follow the above parameters and the specific caselaw of the jurisdiction, the remedy is suppression of evidence and/or release of detainee. The “show your papers” hysteria assumes we live in a country run by law enforcement. For the law to truly be abused, the SAO, defense bar and judiciary would have to be in collusion.

Law enforcement officers are not the final decision makers regarding arrest and detention. Yes, LEO make the temporary decision whether to arrest an individual. Yes, LEO can ruin your day. Yes, there are abusive LEOs in the world…the opposite is also true. 

However, a dutiful and responsible State Attorney (or similar state prosecuting agency) will analyze the case for 1) likelihood of conviction and 2) lack of potential suppression issues. If either of those two elements are not met, the ASA may want to think hard about whether to file the case. If the ASA is not diligent, it is the defense attorney’s responsibility to  file appropriate motions. Then it is the judge’s job to decide whether the law was followed. The process is not perfect and the process is slow…but it is our process.

The above process is afforded to EVERY case in the Union. The system will provide redress for abusive policies and abusive laws. The same process will be provided to every person required to produce ID/DL/Proof of legal status to LEO. The idea that the “show me your papers” law will disassemble the process is without merit.

The “scary” issue of being forced to carry your papers everywhere is ridiculous. WE ALREADY CARRY OUR PAPERS. You are required to carry your papers to drive, to vote, to write a check, to set up cable, etc. We carry an ID everywhere…what is new?

This is much ado about nothing…at least much ado about nothing new…