High Court in a Police State of Mind

For decades we have looked to a web of Supreme Court decisions as the ultimate safety net to protect the innocent from wrongful conviction or detention and to shield us all from governmental abuse in the criminal process.

This safety net, fraying for years, has begun to unravel with alarming speed since the retirement last summer of Justice William Brennan Jr., the great champion of the individual in the grip of the state. Brennan’s replacement, Justice David Souter, has solidified a majority that seems in a hurry to accommodate police and prosecutors by devaluing rights.

The coalitions change, with only Chief Justice William Rehnquist voting against the criminal defendant in virtually every case. But the erosion of important rights proceeds, restrained neither by adherence to precedent nor by deference to the law-making role of the Congress.

A recent example-especially telling because the Court accepted the flimsiest of justifications for prolonging wrongful detention of innocent suspects-is the 5-4 decision in Riverside v. McLaughlin on May 13. The Court held that police could routinely jail suspects for up to 48 hours before bringing them in front of a judge to determine whether there was probable cause to arrest them.

Justice Antonin Scalia, who usually sides with Rehnquist, aptly characterized the result in his dissent: "Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days-never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made."

Fighting Crime With Lawlessness

"If [police] feel that someone’s perched on their shoulder watching every action they’re going to take, you’re not going to get the kind of aggressive law enforcement that you need.

 -Attorney General Richard Thornburgh, on NBC’s "Meet the Press." March 17.

Thornburg’s point was that Congress should license police to present a wide array of illegally seized evidence in criminal trials without being second-guessed by judges.

His timing betrayed a revealing blindness to what can happen when "aggressive" police think they have free rein: Two weeks before, a gang of 15 white Los Angeles cops (including those who only stood and watched) beat a black man almost to death, savagely pounding him with batons and kicking him in the head as he lay on the ground. Some boasted about the beating later through the police computer system, apparently without fear of provoking disapproval from colleagues or superiors.

But for the fortuitous presence of "someone perched on their shoulder"-a hidden bystander with a video camera-it’s a safe bet the officers would have gotten away with their crime. The initial police reports were full of lies and probable lies, including a supposed confession by the victim that he "remembered fighting with officers."

If the Bush administration has its way with Congress, officers like these-and others who eschew brutality but are often tempted to cut legal corners-will have a strong incentive to trample citizens1 rights in search of evidence.

The administration wants Congress to "reform" the longstanding rule excluding evidence obtained in violation of the Fourth Amendment ban on "unreasonable searches and seizures."

Amicus Curiae for the Police State

"This is a free society." Solicitor General Kenneth Starr told the Supreme Court last week.

"You have the right to say no."

Starr was discussing a traveler’s options when confronted by two gun-toting sheriff’s deputies who corner him in the back of a bus, demand his ticket and identification, and then request "permission" to search his bag for drugs.

The solicitor general’s argument for the Bush administration would, if sustained, move us a step down the road toward a police state.

For Starr was pushing to allow police to hunt for drugs by interrogating at random tens of thousands of innocent people and soliciting "consent" to search them or their bags. Such techniques are spreading "across the country," he declared with evident enthusiasm.

The linchpin of Starr’s argument, eagerly seconded by Chief Justice William Rehnquist and Justice Antonin Scalia, was the transparent fiction that those who "consent" when approached in this manner know that they are perfectly free to refuse or walk away.

The case heard last week, Florida v. Bostick, arises from an operation in which police board interstate buses at regular stops and go down the narrow aisles interrogating passengers.

Two deputies wearing green "raid jackets" boarded a Miami-Atlanta bus at its Fort Lauderdale stop. They had "no particular reason to suspect" that anyone on the bus had illegal drugs, Starr conceded in his brief. The driver exited and closed the door. The officers went directly to the back row, where Terrance Bostick was reclining. Partially blocking the aisle, one officer questioned Bostick while holding a gun inside a small zippered pouch; at one point, Bostick recalls, the officer reached inside the pouch, putting his hand on the pistol.

The officers say Bostick consented to a search of his bag. They found cocaine. He got five years.

Coercive Encounters of the Worst Kind

It’s after midnight. You are hurrying through the airport with a carry-on bag, impatient to get home from a business trip, looking around for a phone booth to call ahead.

A man keeps pace with you, staying close. He makes eye contact. You look away. Another man hovers nearby. You walk faster. The first man closes in from the side. The other circles behind you. Your heart is pounding.

"Excuse me." He flashes a badge. "Can I talk to you? I’m a narcotics interdiction officer, and we’re trying to stop drugs from coming in here.”

You know you’ve done nothing wrong. But suddenly you’re a suspect. Your hands are shaking.

He asks for your ticket. He asks for identification. He asks where you came from. He asks where you’re going. He asks whether you have any illegal drugs. He asks whether he can look through your bag.

All the while, his partner stands behind you, attentively.

Pop quiz: (1) Are you free to treat the officer like a panhandler, tell him you’re in a hurry and walk away? (2) If you answer his questions until he asks to search your bag, can you then stop, say you’ve had enough of being treated like a criminal, and leave? (3) If you do that, what will the cops do?

To courts such as the U.S. Court of Appeals for the D.C. Circuit, the answers to the First two questions raised by this increasingly familiar scenario are crystal clear: Of course you are free to leave. It’s so obvious that any "reasonable person" would know it.

It follows, these courts say, that such "encounters" are in no way coercive. As long as the police are polite and do not overtly restrict their quarry’s movement, they may ask anyone to consent to be questioned and searched. The strictures of the Fourth and Fifth Amendments do not apply: no need for a warrant, no need for any reason to suspect the targeted individuals of criminality, no need to tell them their rights.