By Collin County Criminal Defense Lawyer Jeremy Rosenthal
Police do illegal searches for one simple reason. They think they’re dealing with a criminal in a classic struggle of good versus evil.
It is literally life imitating art. We all grew up watching shows about good versus evil like the “Superfriends” huddling together to defeat “The Legion of Doom,”
or the Lone Ranger fighting injustice, or even shows like Perry Mason where even a wrongful accusation is so blatant as to be obvious injustice.
An illegal search is simply no different. The police officer has convinced themselves based on a mix of objective evidence and highly subjective criteria they have uncovered a criminal in the midst of committing a crime. Sometimes they’re right and sometimes they’re not.
Terry vs. Ohio is the classic Supreme Court case which discusses the differences between officers using “hunches” or supposition instead of using concrete evidence. It has long been recognized hunches, guesses or other manufactured probable cause go hand in hand with police profiling.
Psychological Studies Recognize People’s Views of Themselves Affects Their Behavior.
People tend to view themselves differently than they view others. They tend to view themselves as objective, unbiased, and generally more positively. Additionally, people tend to over-estimate how much we can learn about another during a brief encounter. Practically, then, it is easy to see where a self-assured officer convinced he or she has uncovered a crime which only they alone can sense pushes, and pushes, and pushes a situation to the point where a search becomes illegal.
How It Works In Reality
A police officer who has pulled over a group of highly anxious teenagers in a beat-up car at 1 a.m. on a Saturday morning is simply more likely to suspect drug or alcohol involvement than if he were to pull over a mom in a minivan at 3:00 p.m. on a Wednesday.
In the former situation, experienced defense lawyers are naturally skeptical of a police report which tends to craftily bend, twist, or slant the officer’s observations which try to convert subjective beliefs into concrete facts justifying a search.
For example, it’s not uncommon to read police reports which claim a suspect “was anxious.” Anxiety may be present for countless reasons in a suspect yet a police report will often continue, “in my training and experience it is common for drug dealers to be nervous when confronted by police.” While this is probably true to some extent — its simply pure guesswork.
Other extreme examples I’ve come across include where an officer claimed to have observed the suspect’s heart beating through a t-shirt (which in the officers experience indicated guilt) and when Defendant stepped out of the vehicle — he did so to distance himself from drugs in his car which is a common tactic for drug users (based on the officer’s training and experience).
One last claim I am seeing more and more often is an officer claiming the ability to smell unburnt marijuana — often outside the vehicle or even in containers or baggies. While police are specifically trained to detect the distinct odor of burnt marijuana — there is virtually no proof the ability to detect unburnt marijuana is anything better than a guess.
*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice. For legal advice about any situation you should consult an attorney directly