Why Police Do Illegal Searches

January 16, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

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,”

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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


Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.

*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 contact an attorney directly.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.