Friday, August 21, 2009

To protect and serve? Or, To deceive and confiscate?

One of my anarchist friends who visits and comments here occasionally, Planetaryjim, won't have a friend who is either a cop or a soldier, so much does he view them as oppressors rather than protectors of society.

I don't go that far, but you have to admit that we are daily finding reasons not to trust law enforcement agents and agencies.

Here are two timely examples:

First, from Drug War Rant:

You see, in New York, having a small amount of marijuana in your pocket is not an arrest-able offense. However, having it out in the open is.

According to U.S. Supreme Court decisions, police are allowed to thoroughly pat down the outside of someone’s clothing looking for a gun, which is bulky and easy to detect. But police cannot legally search inside a person’s pockets and belongings without permission or probable cause.

However, police officers can legally make false statements to people they stop, and officers can trick people into revealing things. So in a stern, authoritative voice, NYPD officers will say to the young people they stop:

“We’re going to have to search you. If you have anything illegal you should show it to us now. If we find something when we search you, you’ll have to spend the night in jail. But if you show us what you have now, maybe we can just give you a ticket. And if it’s nothing but a little weed, maybe we can let you go. So if you’ve got anything you’re not supposed to have, take it out and show it now.”

When police say this, the young people usually take out their small amount of marijuana and hand it over. Their marijuana is now “open to public view.” And that – having a bit of pot out and open to be seen – technically makes it a crime, a fingerprintable offense. And for cooperating with the police, the young people are handcuffed and jailed.

People really need to know about this kind of stuff. Serve and protect is a thing of the past. Deceive and destroy are the mottos of today.

And from the Fayetteville NC Observer [h/t Alphecca]:

George Boggs thought he was doing police a favor last week when he handed over the firearm he kept in his car after he was in a wreck.

Boggs has a permit to carry a concealed weapon, and he wanted his handgun secured while he went to the hospital, he said. The permit requires him to notify police of his weapon.

On Monday, when he went to the Fayetteville Police Department to retrieve his gun, he couldn't get it back. He was told that police first wanted to fire the gun to see if the spent shell casing and round would match data in a nationwide ballistics inventory used to solve crimes.

The gun is scheduled to be test-fired today, he was told.

Boggs complained to police supervisors that his new gun has never been fired. The ballistics test, he said, would diminish the value of the .45-caliber Taurus Millennium he bought last month for $399 at a local gun store.

He said the city is violating his Fourth Amendment rights that protect him from unreasonable searches and seizures.

Police defend their decade-old policy of checking most handguns that come into their custody - no matter the reason - to see if they have been used in a crime. They say public safety outweighs any inconvenience to the owner.

Boggs said he did nothing wrong. He was not arrested. The gun was not taken from a crime scene. The other driver in the Aug. 14 accident was cited, a police report says.

"If they can get away with this, then they can get away with other things," he said.

The police department, by the way, aggressively does not give a shit that such a procedure might be illegal:

Sgt. John Somerindyke said in situations such as this, police can't assume a weapon has never been used.

"We have to be consistent with our policy," he said. "We have had some hits doing this."...

Tiffanie Sneed, the Police Department's lawyer, said the gun-testing policy helps make the community safer. People sometimes buy guns not knowing they have been used in crimes. The weapons are returned to their owners if the tests show they were not used in crimes, she said.

"Due to the gravity of the subject matter, we don't deviate from this policy, as long as the weapon meets the IBIS criteria," she said.

In other words: no due process protections, no right to challenge the process, and absolutely no probably cause that the weapon has been used illegally. The police department merely circles the wagons and asserts we make the community safer, which is a mystical talisman that somehow causes the 4th Amendment to vanish down the toilet.


Miko said...

Part of the problem is that we've created such strange laws: if having a drug in your pocket is legal, why should taking it out be a crime? Pragmatically, this law was no doubt created because supporters knew they couldn't get full legalization through and were settling for making it harder for the police to do their jobs. Now, as someone flirting with the anarcho-libertarian position, I don't necessarily view that as a bad thing, but it's definitely going to have consequences on how the police act.

And the fact that complaints against government policies/employees are tried in a government court isn't helping either.

MArk H said...

Steve, don't know if you caught the article on Wilmington's new cell phone law, which Loretta Walsh mentioned as a possible way for Wilm police to pull over "suspicious" vehicles if they wanted to.
I find it interesting that some of the protesters on the right are worried about Obama taking their guns....Looks like it's not Obama they need to worry about :)

Ed Heath said...

You can always find questionable cases of authority crossing the line. However, I bet all of you and your friend call the police the instant your rights are violated by a perpetrator!

The majority of police and military do a wonderful job of protecting our rights and deserve our thanks!

Duffy said...

After comparing the man's weapon against the database how much you wanna bet they're going to add his info?

tom said...

Miko, you misunderstand. Having a drug in your pocket is not legal.

But (ignoring for a moment the fact that police, in the modern sense, did not even exist until about 50 years after the U.S. Constitution was ratified) it is explicitly not the Police's job to search all persons who might violate that law and arrest those they catch. In fact it is illegal for them to do so.

The "in plain sight" exception came about through case law as the courts sought to define the meaning and boundaries of the word "unreasonable" in the 4th Amendment and various state constitution equivalents.

Another major problem is that even the most reasonable seeming case law exceptions to the 4th combined with a lie can be abused to completely nullify your rights.

For example if the intimidation tactic described above fails, Terry v Ohio says a cop can frisk you for weapons (and only weapons) if they reasonably believe you might be a threat to their safety. Almost seems reasonable. But if they happen to "accidentally" feel that bag of weed they're supposed to ignore while looking for your nonexistent gun, they will claim to have "detected the smell of marijuana" in order to manufacture probable cause for a full search.