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by Peter Moskos

July 21, 2009

Question for Readers:

Should being an a-hole to police get you locked up?

Seriously.

Remember, being an a-hole isn't technically a crime. But many people have talked their way into handcuffs. Police can always get you for something.

I ask this because my wife seemed vaguely bothered by this concept. But it doesn't bother me.

John Van Maanen wrote the classic academic piece appropriately titled "The Asshole." Some of it is a bit dated now (it's from 1978), but the core concept holds true. Police label people as suspicious persons, know-nothings, or assholes. Assholes are likely to get locked up (in Van Maanen's time, beaten).

More recently Southpark's Cartman said, "This will teach you to question my authoritay!" And Chris Rock's "How Not to Get Your Ass Kicked By the Police" always deserves another viewing.



Now Rock, like Van Maanen, talks about getting your ass kicked. But the same applies to getting arrested for some B.S. charge. I honestly don't know how police could do their job if they didn't have a "catch all" offense to lock you up (but of course you need smart police officers to use and not abuse this discretion).

Seems like you should treat everybody with respect--strangers, waiters, employees in stores--but of all people you should treat with respect, a police officer with a gun, handcuffs, and the legal authority to put your ass in jail should be pretty high on the list.

In the old days, if you were a jerk to the police, they might beat you. That doesn't happen much anymore. Ultimately cops have handcuffs. Handcuffs--and not, as Bittner once said, the use of force--handcuffs define the function of police.

But what are you supposed to do as a cop if somebody will not respect your authority? Look, if I tell a drug dealer to leave a corner and he says, "f*ck you." He's got to go. What is a cop supposed to do when verbally confronted? You can't through down and play the dozens.

Every police/public confrontation ends up in one of three ways: the suspect must 1) defer to police authority, 2) leave the scene, or 3) get locked up. Right or wrong, there really is no other choice. Not that I can think of.

Generally, I had a pretty high-tolerance (at least by Baltimore cop standards) for taking sh*t. I'm a pretty mellow guy. Sometimes I would just laugh. I did not have a chip on my shoulder and I didn't want to lower myself to ghetto standards. Other cops would be quicker to take things personal.

But if you questioned my authority? Well, ain't nobody gonna punk me. Not when I was working. Cops can't lose face. Period. To do so is dangerous if you ever have to walk those streets again.

I didn't see it as my job to teach people respect. It was usually too late for that, anyway. But if you wouldn't respect me, you would at least obey me. If I had to get in your face, so be it. Better to feared than loved, cops will tell you. I don't buy that. Better to be obeyed than feared, I say. When people are afraid, they strike back when cornered.

But sometimes you have to make people think you're crazy. Make them think you hate them. Make them afraid. I reserved that act for special occasions.

[Why do you think so many cops shave their heads? I did, too. Looking like a skinhead might not be good for community policing, but it can make a criminal think twice before wanting to fight you.]

As a cop, I didn't want to be loved. I didn't mind being feared. I did want to be respected. But all that really mattered to me was to be obeyed.

105 comments:

Marc S. said...

Should being an a-hole get to police get you locked up?

Depends what you define as "asshole". Sure, being outright disrespectful to ones athoritah is one thing, but how often do we see cops take it more than a bit personal when that "asshole" is just standing up for their rights? (the real ones, not the ones that get invented every time the cuffs come out)

Whatever the case, just make sure the person you're arresting isn't a notable African American studies professor at Harvard

PCM said...

That's a good distinction.

People do have rights. Mind you 9 out of 10 have no idea what those rights are. But there's nothing wrong with standing up for your rights...

But in that case, what should I tell my students when they ask me if they can tell a cop that they don't want to consent to search?

That is their right. But I can't in good faith tell them that's the right thing to do if they don't have anything to hide.

I tell them to pick their battles. And that by saying no, you increase the chance of getting arrested (and searched).

Also, I listened to Gate's lawyer/spokesman/colleague on the radio. He implied that what most pissed Gates off was the officer entering his home without asking for or receiving permission.

Now the officer didn't do anything wrong in entering the home--it would be justified by both the investigation and for officer safety--but they do say a man's home is his castle.

CPM said...

There is an old video they showed at the police acamdemy (20 years ago) of a Maine state troper issuing a ticket a Mainer. The operator is going off on the tropper like you would not believe. He's throwing the ticket out the window. The trooper tells him to pick up. (which he does) The most verbal abuse you ever heard (violent and tumultuous bahavior for sure). The trooper just listens to him tells him to have a nice day at the end. I wish I could find the video and attach it.

The point is/was you can take some shit from people and learn how to handle it. Not eveyone has to be arrested.

Having a cruiser camera's can be very helpful in these situation. Even in the Gates case. If Gates was going off from the start and the officer was taping it, this would be a differant story.

Doug said...

I remember that video. That officer had some serious self-control! I was truly impressed.

Peter, there's a difference between an asshole drug dealer in Baltimore and a smart ass college student getting tazed on a campus. From the outside, it seems that sometimes officers can't tell the difference. I realize that's not entirely fair, and that officers have a tough job. But police, like our fine military personal, are called to a higher standard of conduct than virtually everyone else in public service.

The Gates case demonstrated a couple of realities. 1) A Black man who forgets his keys and tries to get into his house is still assumed to be a criminal. 2) A Black man who raises his voice to a police officer is going to get arrested.

If this had occurred in the deep South instead of Cambridge, Gates would have been taken down with force. If this had happened a few decades ago, he would have been shot. (I live in Boston, but I spent much of my life in the South.)

This is a lot of work left to be done...

Anonymous said...

Doug,

Let's be clear: when a person looks out her window and sees two (black) guys forcing open the door to a home by banging it with their shoulders until it opens,

1) If she doesn't recognize either of the men as a resident of the house in question, and 2) she is a decent citizen and neighbor, then 3) she should call the police to report a possible break-in. She should 4) call whether the guys are black or white or hispanic, but if she calls only for blacks and hispanics then 5) that's hardly ideal, but a good start.

Her problem is not with seeing the criminality in the actions of the black or hispanic, but not seeing it in the actions of the white. The worry is not that she did the wrong thing in calling about Gates, but that she wouldn't do the right thing when she saw the white breaking in. See the difference?

So Doug, be clear for me here: what are we to make of two people we don't recognize banging open the front door to a house?

Finally, all Gates had to do was not scream and yell insults and obscenities and this all would have been settled in five minutes.

In some sense, Gates should be grateful that his neighbors care enough about him and the community enough to be on the lookout for burglars and call the cops when they see suspicious activity. I fear one day living in a place where criminals victimize others while people just look on and do nothing.

Doug said...

Anonymous: I like your distinction, specifically, "would she have called police if the two guys were white?" You have highlighted the fact white people like me get a pass on a lot of things, and also that there is an assumption of guilt based on race, which was part of my original point.

As far as his neighbor is concerned, she clearly didn't recognize him, which means the neighborhood has already failed to do its job. I live in a similar neighborhood outside of Boston, and we all know each other. If I saw my neighbor trying to break into his house, I'd go help him.

Regarding screaming obscenities: yes it's absolutely true he should have just kept his mouth shut, assuming it happened the way the report states it did. But the point is that Gates felt targeted for being Black. As you just pointed out, I don't get targeted for being white and certainly not on the porch of my own home. Hard to imagine what that's like.

The Cambridge police screwed up. They overreacted because they felt disrespected. They _were_ disrespected, and it's something I would never personally do, given my respect for the badge. But I am not black and to remove that aspect of this discussion is just ignoring a reality.

PCM said...

Also, the witness wasn't a neighbor but a passerby who worked in Harvard Square.

Doug said...

@PCM, my mistake. I hadn't heard that it was some random person walking by.

Sgt. T. said...

Step outside and don't be an asshole.

Got a question for the arresting officer. If you were departing Mr. Gates' residence and the investigatory phase of your call was over did you have a lot of reason for being around to arrest him? "I told Gates that I was leaving his residence and that if he had any other questions regarding the matter, I would speak with him outside his residence." So you were done. Can't a guy pretty much speak as he wishes on his own property, short of threatening language? Almost every disorderly conduct law has an “in a public place” qualifier. I strongly suspect when this incident began Gates got very defensive at being approached by a white officer (a nice little wide-ranging prejudice we don't like to talk about at parties) and the officer immediately got defensive as well. Because he was defensive the officer probably wasn't able to relate in calm, even tones and body language that he was simply responding to a call and after making contact he can see there is nothing to it, good night sir. Yes, Gates was beclowning himself in a major way, but the arrest was f'ing thin. But Gates actively stepped towards his outcome , literally and figuratively, so his room to cry is minimal. The esteemed professor stopped being a professor and assumed the role of professional victim. And he's getting a pass on his conduct because of his race and title.

The arrest for asshole is a slippery subject. It takes some time and a bit of innate desire to build up a professional filter that allows you to step outside yourself and view the call in context. (My guess is the arresting officer in the Gates case didn't have lot of experience with black men calling him a racist and getting agitated. Response to that challenge has to be measured and scaled correctly.) Also, if you abuse the concept judges and prosecutors are going to notice and adjust their view accordingly. That said, arrest for asshole definitely has it's place. Again, a good guide is asking the question “Is he getting into the ring”, i.e. engaging in confrontation. If so it's game on.

Sgt. "they served him to me with his pants around his ankles" T

Doug said...

Hey Sgt. T. - That was a great comment. Very balanced in perspective. Thanks.

PCM said...

My thoughts exactly.

But then in the Gates' case, would you say he "got into the ring"?

JVN said...

"the officer probably wasn't able to relate in calm, even tones and body language"

"My guess is the arresting officer in the Gates case didn't have lot of experience"

I don't know if "Sgt. T." is supposed to mean you're a LEO but I think evaluating another officer's performance based on guessing and speculation in a public forum is a pretty cheap shot.

Anonymous said...

So now you have this woman who was probably raised by her family--such as I will raise my kids--to report possible wrongdoing to the police. We're all busy assuming she's a racist because we idly speculate that she might not have called the police if Gates was white. This disrespectful to a citizen who clearly performed a valuable civic duty on the plain face of things. We should just cede that what she did was the right thing to do, thank her for her alertness, and leave her and all of the speculative baggage that follows out of it.

Soooo, now you have a cop who is looking for a black burglar, and encounters a black man at the address where the black burglar was reported to be, and in fact it is the very man who did indeed break into the house.

And we're right back to where we started. Gates' behavior leaves much to be desired as a regular joe, and a huge amount to be desired as a distinguished academic. Does anyone know of any other time he treated another person as poorly as he treated this officer?

As Peter alludes, there comes a point where a cop says "enough of this." This is why Gates was arrested: cops know that they cannot be expected to deliver the services of public safety in an environment where, as they are doing it, even the citizens who are shown to be innocent of wrongdoing are screaming obscenities at them in public as they are working. This is not how civic interactions happen. It is against everyone's interests for the police to permit this type of environment. For example, when they come to take my accident report, I don't want the other motorist to be able to stand there screaming for minutes on end about how he hates the police as they prepare the reports.

Gates, ironically, degraded the integrity of his community on that day.

Anonymous said...

The point where the situation escalated, based on both accounts, is when Gates asked the office to identify himself. This was AFTER he had presented ID and after the officer had entered his home. Gates had a right to that information, period. The officer seemed unwilling to provide it -- just hand over a card.

An officer's refusal to provide his badge number is worth a fight. One of the main differences between a civilized police force and the thugs we see in places like Russia and Iraq is the absence of anonymity.

It's obvious to me that Gates was planning to file a complaint, and the cop wanted to avoid it by leaving without clearly identifying himself. Of course, that lead to a bigger problem for all involved.

PCM said...

I found that giving my card to people was a great tactic!

Whenever people threatened me with a complaint, I would whip out my card and give it to them saying, "Here's my card."

By threatening to complain, they were trying to intimidate me. I wouldn't let them. Not one person I ever gave my card to followed through on their threat.

As a side note, giving out my card was also useful if I wanted to avoid writing a report. I found people with generally just as happy with my card as with a report number. Mind you neither would do them much good.

Anonymous said...

BTW, for anyone who thinks the cop didn't have to comply with Gates's request for identification, here's the MA state law on the matter:

Chapter 41: Section 98D. Identification cards

Section 98D. Each city or town shall issue to every full time police officer employed by it an identification card bearing his photograph and the municipal seal. Such card shall be carried on the officer’s person, and shall be exhibited upon lawful request for purposes of identification.

PCM said...

Slightly off topic, but hell it's my blog.

Whites and blacks often have very different reaction to this kind of situation.

Whites often say, “Just behave right and everything will be OK.”

Blacks often say, “Why does this keep happening to black people. I’m sick of it!”

It brings to mind something another distinguished black Harvard professor, my old adviser and mentor, Orlando Patterson, brought up in class. I bring it up in my classes, too.

What percent of whites do you think are racist? I don’t know the answer. And of course it depends on how you define racism. But leave that aside and come up with a number. If you come up anything greater than 13%, then consider this: there are more racists in America than there are black people.

It doesn’t matter that you and your friends aren’t racist. In truth, all the non-racists don’t matter if you’re black. What matters is those who are racist. One racist can ruin your whole day. And if you’re black you run into them. Because they’re more of them than there are of you. That matters.

Anonymous said...

Read Gates' bio. The man has led a life of academic prestige and privelege that eclipses the vast majority of Americans of any race or color. He seems to have been give more than a fair shake in every instance and at every turn. He is a brilliant, renowned scholar who has led a charmed life, and when he met that cop on his porch, nothing that ever happened to him in his past seems to suggest he'd be subject to some petty racist conspiracy abouta burglary. Why couldn't he just talk to the cop as if the cop was a decent person deserving of basic respect?

Antway, didn't the police report say that the officer clearly identified himself on three different occasions? And that Gates kept on asking for this information even after he was provided with it?

So the cop identified himself at least three times. But even if he didn't, this wasn't some street protest with thousands of cops. It would have been an easy matter to discover who the officer was who responded to the burglarly at 123 WEB Dubois Street.

Anonymous said...

The officer didn't identify himself -- that requires SHOWING HIS ID CARD as required by state law, not just saying his name as he walked out. Gates was demanding his rights and being ignored by the cop. So, yeah, he needed to keep asking.

10-8 said...

African-American scholar and Syracuse University Professor Boyce Watkins speaks out against Gates and his behavior:

http://www.thegrio.com/2009/07/i-am-not-al-sharpton.php

Anonymous said...

This case reminded me of something that happened maybe 230 years ago. Nightline did a piece on black police officers. They basically had a panel discussion of their experience as officers and as black men out of uniform dealing with the police. One of the participants was a high-ranking officer with a South Florida sheriff's department.

Just a few weeks after that, he was stopped by a state patrol officer heading north on the interstate. The patrol car camera caught everything on tape. The state patrol trooper told him had stopped him for not signaling when he changed lanes. The sheriff's deputy calmly told him he had signaled.

The trooper asked if he could search his car. The deputy calmly refused. Then he also calmly told him that he stopped him just because he was a black man driving a nice car out of Miami and he wanted him to call his supervisor. The trooper refused, and that's when both men started getting angry, or should I say, obviously angry. The deputy refused to obey any more of the trooper requests and just repeated his demand to see a supervisor. It ended with the deputy getting into a fight with the trooper and another one who joined him and arrested. I don't know how the case turned out.

PCM said...

I think you're talking about Major Aaron Campbell of the Miami-Dade police. I show that video in my class. It's got everything going on: race, rank, city suburb.

Stories of that case are here and here.

"Give me my license, bitch!" He says. Hey now. That's never a good way to talk to police.

Anonymous said...

Woops. Rather different than I remembered. Not sure that my memory is any better on this, but I recall Nightline doing something on this and Ted Koppel basically saying that what made it so surprising was that so many of the officers they interviews on the first show expressed such ambivalent feelings about law enforcement and Campbell, by contrast, seemed much more willing to accomodate a lot of other officers shortcomings.


Here's maybe a better example of what standing up for your rights gets you:

http://www.nytimes.com/2009/02/18/nyregion/18about.html

Jaguar said...

I did not have a chip on my shoulder

A phrase I use, even if it is a cliche: "sometimes the most dangerous weapon a cop carries is the chip on his shoulder."

Why do you think so many cops shave their heads?

And often a haircut is just a haircut. Lots of cops wear their hair short or shaved for a whole variety of reasons other than hoping to look like a badass: you need not worry how your hair looks when your lid is on and off 100 times a day; there's a tactical advantage to keeping your hair extremely short; it hides a receding hairline and graying; you did a stint in the military before the academy and are used to the look; chicks dig it, etc. etc. etc.

PCM said...

Good points.

Marc S. said...

"But in that case, what should I tell my students when they ask me if they can tell a cop that they don't want to consent to search?

That is their right. But I can't in good faith tell them that's the right thing to do if they don't have anything to hide."

Can you ever be sure you don't have anything to hide? There's got to be billions of pages of legal code out there, I can't be sure I'm not breaking the law at any given moment.

But, yeah, i always said that the chris rock bit is required viewing after watching "flex your rights"

Doug said...

(Took the night off from the computer.)

Hey all...just wanted to say that the caliber of this discussion has been great. Far better than what I've seen on a lot of other blogs and news stories.

PCM, you've got a good following.

Anonymous said...

Now the officer didn't do anything wrong in entering the home--it would be justified by both the investigation and for officer safety--but they do say a man's home is his castle.

He didn't have probable cause to enter the home. He didn't have it based on the tip, and he had even less when he saw the man and talked to him through the door. And let's be clear: an exigent circumstances warrantless entry requires PC.

Then the officer compounds his trespassing by failing to show his id card as required by local law.

This is why it is a bad idea to have a catch-all for locking up ppl perceived as Adam Henry's. Even the smartest police simply don't know the law well enough to fairly judge when someone is standing up for their rights, present company very much included.

Jeff said...

Remember, being an a-hole isn't technically a crime. But many people have talked their way into handcuffs. Police can always get you for something.

Was the Gates arrest racially motivated? Maybe. Was it because he was being asshole? Probably.

I wish less attention were given to his race, and more attention to this problem. You say later in the blog entry that you would rather be obeyed than feared.

If the quoted assumption is accepted as truth, police officers should always be feared by default, and only rarely respected.

10-8 said...

Anon @7/23 1:36

Did that law degree you got off the bubblegum wrapper come with a money back guarentee? Maybe on Pluto, but PC/exigent caselaw in the US is solidly on Sgt. Crowley's side. Then again there's no 4th amendment issue here so you're just talking through your hat.

Anonymous said...

but PC/exigent caselaw in the US is solidly on Sgt. Crowley's side. Then again there's no 4th amendment issue here so you're just talking through your hat.

Um, no 10-8, you are incorrect. See, Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987); In re Sealed Case, 153 F.3d 759 (DC Cir 1998.

Again, misunderstandings about what the law really is is actually why police people should not be give to much power to arrest any angry person they want.

Anonymous said...

Oh, and if you read the police report it sure looks like Officer Crowley for his id until after he went into Gates' house.

If Gates had refused to provide id while Officer Crowley was still outside then MAYBE that would have given Officer Crowley pc to go in. But Officer Crowley went in before asking for the id and that makes Officer Crowley a trespasser and gave Gates every right to create any kind of disturbamce he wanted in expelling the trespasser.

The fact that a law professor can't figure that out is sad.

Anonymous said...

Correction:

--it sure looks like Officer Crowley did not ask for Gates' id until after he went into Gates' house.--

10-8 said...

Dear Bubblegum Wrapper "Lawyer",

You have absolutely no clue what you're talking about so I won't waste my time correcting you. You're parroting back almost word for word somebody's rant you read on "The Explainer" at Slate. I also read that nonsense over there. I didn't waste time correcting that seriously misguided person either, who at least admitted he wasn't a lawyer.

Here's a hint how you can better prepare your legal "arguments" in the future and not just rely on stuff you found on some blog comments... research US Supreme Court precedent **after** a 22 yr old district court case you're attempting to use as your justification. Stare decisis is a bitch pal. Don't try to play in the big leagues with a plastic bat.

P.S. I'm not a law professor. Apparently you have no idea what 10-8 means either.

Legal Eagle said...

He didn't have probable cause to enter the home.

Your exigent circ, PC, and ID discussions about incidents inside the house are irrelevant to this arrest. Gates voluntarily stepped outside the house. The disorderly conduct offense occurred entirely outside the house. The arrest occurred outside the house.

Gates's biggest mistake of the night was stepping outside that house. See Peter's previous entry "You want to step outside, Mr Gates?" as to why that was.

PCM said...

Well said, Doug. I couldn't agree more. That being said, let's keep it civil, folks. I'm on vacation. 10-8, you may be right, but keep the badmouthing to me, please. And you should correct misinformation on other blogs. That is what education is all about.

Anonymous. you do not need probable cause to enter a home. You need probable cause to search or to make an arrest. Police can and do enter homes without permission for a ton of reasons. Exigent circumstances and safety (for the officer or for others) are two of them.

As a rookie cop I was actually amazed to learn how easily police can enter homes. One thing you can't do in a home, however, is charge somebody with disorderly conduct.

Marc S. said...

"Oh, and if you read the police report it sure looks like Officer Crowley for his id until after he went into Gates' house.

If Gates had refused to provide id while Officer Crowley was still outside then MAYBE that would have given Officer Crowley pc to go in. But Officer Crowley went in before asking for the id and that makes Officer Crowley a trespasser and gave Gates every right to create any kind of disturbamce he wanted in expelling the trespasser.

The fact that a law professor can't figure that out is sad."

I'm not a law professor, but I'm pretty sure you're wrong here without having to look up any supreme court precedent. 911 call about B&E + busted door = all Crowley needed to enter the house in good faith, stop and identify anyone inside.

There's some other wrong stuff in there, but it's NBD.

Anonymous said...

Um, no PCM, you are incorrect. See, Payton v. New York, 445 U.S. 573, 586 (1980) ("absent exigent circumstances, a warrantless entry to search for weapons or contraband is unconstitutional even when a felony has been committed and there is probable cause to believe that incriminating evidence will be found within.")l Reardon, above (applying Payton to a burglary call situation where the rightful inhabitants turn out to be home).

Side note to 10-8: I was not trying to accuse you of being a law professor.

Anonymous said...

@ Marc. S.:

1. Visibly broken door is not in evidence here that I have seen.

2. The LEO's report does not mention it as part of the reason for entering, or even mention it at all. In fact, the report seems to be cautious about making assertions that could be falsified by people other than Gates.

3. For probable cause analysis, purported homeowner at door, trumps broken door anyway. In other words, if the LEO had shown up, but Gates had left to get a locksmith, then Officer Crowley MAYBE would have had the probable cause he required. However, once Gates shows up at that door, as he did, it is a game changer as far as probable cause goes.

4. I know that at least the Reardon case is up on the net. In re Sealed Cases probably is, too. Read'em.

Anonymous said...

More @Marc S.

5. Not only does the report not mention a visibly broken door as a reason for entry, but it does not mention the entry AT ALL. That is quite an omission. One would need to have gone to the academy to have a blindspot big enough to cover that glaring red flag in Sgt. Crowley's report.

Sarge said...

Anon -- Peter Moskos & others are 100% correct. You obviously don't understand why Payton does not apply to this case. You're making an oranges argument to an apples issue. Even though Payton doesn't apply, exigent circumstances are met here. If this case went to trial Gates could not raise a 4th amend. defense in this case so Payton wouldn't even be triggered.

Anonymous said...

Um, no, you are incorrect Sarge. At least in the First Circuit, an entry into the home requires BOTH exigent cirrcumsatnces and probable cause -- and, what's more, policemen are legally presumed by the courts to know that. DEMAYO v. NUGENT, 517 F.3d 11 (1st Cir. 2008) (Refusing qualified immunity to police officers because they should have known that "'police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home'" (quoting Gates v. Louisiana, emphasis added)).

Accord:

Massachusetts state courts are in full agreement that both probable cause AND exigent circumstances are required and that the law is clear on this point. Commonwealth v. DeJesus, 439 Mass. 616, 619 (2003):

"Federal and State case law delineates clear boundaries for permissible entry by police officers into a home in order to search or arrest. In the absence of a warrant, two conditions must be met in order for a nonconsensual entry to be valid: there must be probable cause and there must be exigent circumstances." (Footnote omitted.)"

10-8 said...

>And you should correct
>misinformation on other
>blogs. That is what
>education is all about.

You can't educate stubborn people who don't know what they're talking about but insist they're correct. You need both eyes and ears open to educate. When someone keeps saying "you're wrong" then uses ridiculous arguments citing irrelevant caselaw to make their point, that's a person who can't be educated.

>but keep the badmouthing
>to me, please

What you call badmouthing I call sarcasm. I'm a blunt, direct, no nonsense sort of guy. I don't suffer fools or trolls gladly.

If you want to delete my comments go right ahead. It's your blog, your show, your rules of the road.

Anonymous said...

When someone keeps saying "you're wrong" then uses ridiculous arguments citing irrelevant caselaw to make their point, that's a person who can't be educated.

lol. Typical popotude.

Jaguar said...

Case law cuts both ways, particularly with issues like probable cause and exigent circumstances. Both are tested regularly on an arrest-by-arrest basis. A defense attorney's opinion about how selected precedent applies often differs radically from a police officer or a prosecutor's opinion. Precedent is fluid; unless and until a particular arrest is challenged, flatly declaring that an officer is wrong because of a personal interpretation of a particular case is an exercise in futility. A personal opinion about caselaw outside a courtroom by an unrelated party with no standing to challenge does not trump an officer's power of arrest.

Entry of the officers into the Gates dwelling is a non-issue. It was a possible crime in progress, and Gates was a potential suspect in that crime. Exigent circumstances and probable cause were both solidly established and the officers' actions satisfy the Payton, Dejesus, and Reardon tests plus many more. All of this has nothing to do with the disorderly charge anyway. If, for the sake of argument, a trespass inside the dwelling occurred, that is a civil matter entirely unrelated to the breach of the peace outside the house. There is no concurrency between entry into the house and the unlawful act which later occurred entirely outside the house.

Anonymous said...

Exigent circumstances and probable cause were both solidly established and the officers' actions satisfy the Payton, Dejesus, and Reardon tests plus many more. All of this has nothing to do with the disorderly charge anyway.

Wrong on probable cause. If the police get a call about possible B&E there is not probable cause to go in at that point.

Rather, police are supposed to go to the house and look for signs that someone did break in, and also see if the homeowners are home. Whether there is probable cause or not is dependent on this additional investigation at the scene.

If someone shows up and claims to be the homeowner, you are not going to have probable cause until the purported homeowner either says: "yes, my wife has him at gunpoint in the living room," or else does something inconsistent with being the homeowner (like, say, failing to id).

The point is, if the homeowner comes to the door, then the conversation about the homeowner getting id should occur with the policeman outside and the purported homeowner inside.

The fact that someone claiming to be the homeowner is there would dominates probable cause analysis from the moment this character appears in the story. If the homeowner acts like the homeowner, then that erases probable cause, at least until the homeowner does something inconsistent with being the homeowner like refusing to have his wife fetch his id.

The problem with Officer Crowley is that he did not ask for id until he had already violated the Fourth Amendment by coming in non-consensually. From that time forward Sgt. Crowley was a trespasser, and Gates was privileged, of course, to act tumultously in expelling a trespasser. Sgt. Crowley messed up.

Jaguar said...

Anon, I suggest you re-read the first paragraph of my comment immediately proceeding yours. And then read it again a few more times.

Anonymous said...

yeah, I read it. First of all, I don't think there are any defense attorneys on this thread.

Second, I think cases are pretty relevant to the Con Law that Sgt. Crowley violated here. Whether he violated the Constitution is real relevant to his lawful power to arrest.

Third, if you don't like my cases, do you have better?

Sgt. T said...

Wow, this is the thread that won't die. JVN, point taken. I'm currently digesting my large plate of crow.

Disclaimer: I haven't read the entire report. I think Anonymous The Attorney is letting fly with Probable Cause and overlooking it's little cousin called articulable suspicion (or any of the other similar terms), which lives at a lower action threshold. PC is the inflection point where cops go from talking to arresting, articulable suspicion why you're talking in the first place. A non-anonymous caller reporting a felony in progress (I.e not Florida v. J.L.) and then arriving to find someone inside the location is a big fat slice of articulable suspicion. I think what Anonymous The Attorney is driving at is some Fruit of the Poisonous Tree thing, where the officer had no reason to be there in the first place and therefore everything that followed was invalid. (Or I could be reading it completely wrong, that happens quite a bit.)

It's good to see the officer isn't taking it like the French on this one. Gotta feel for a guy when everybody from your chief to the POTUS dumps on you. When your department and the city's first reflex is to publicly apologize, rather than actually do a proper internal investigation, you gottta know you're screwed. I hope for his sake Cambridge PD has a strong union.

Dave said...

Sgt. T I believe the arresting officer's chief has backed him quite strongly several times in media interviews.

Anonymous said...

I think I see some of the trouble you are having. This hypothetical should clear things up:

Imagine that you look out your window one night and see a drunk laying on your front lawn. You open your front door and get out on your porch and yell:

GET OFF MY PROPERTY! GO NOW! DON'T COME BACK! Move, MOVE, MOVE!

When you do this: (i) the drunk gets up and quietly scurries away to the local homeless shelter; and (ii) several neighbors nervously peek out their front doors to see what is going on. As it turns out, a police officer, walking the beat, saw the whole thing. He was planning on telling the drunk to move. He was pretty sure that he could clear the drunk quietly, but you ruined it by discovering the drunk before he got to your house and by yelling noisily at the drunk.

Can the policeman lawfully arrest you for disorderly conduct? Why not?

Doug said...

Legalities aside (since I have no chance of adding anything intelligent) I think both Gates and Crowley need to sacrifice a bit of ego and talk to each other face to face. We are definitely at the "suck it up and shake hands" stage.

I keep trying to put myself in both of their shoes on this one.

Gates: "Finally home from 20+ hours of travel. Man I'm exhausted. Dammit, I can't get my door open! Ok, now I'm inside. Wait a minute...why is a cop entering my house? Seriously, what the fuck? Why is he in my house? Why is he asking me for ID? Get the fuck out of my house! Why did you follow me in here? Is it because I'm black? Are you a racist? Give me your name and badge number!"

Crowley: "Break-in in progress. Shit, there are two guys already in the house...but the lights are on. Hmmm. Are they armed? Crap, this guy is yelling at me. Show me some ID sir! Ok, he's the owner. Time to go. Wait, he's still yelling at me. Look buddy, how about a little respect? I was trying to protect YOUR property! Somebody reported a break-in. Fine, bring it outside if you want to talk. Dammit, he's following me out and still yelling. Fuck this, you're going in."

Yeah, I'm sure it didn't happen quite like this. But still, when viewed from each perspective, neither person was shown enough respect. If I were Gates just returning from a very long trip, I would be pretty damn mad about this. If I were also Black and had felt either subtle or overt racism at any point in my life, I'd be outright indignant.

If I were Crowley, I'd be irritated as hell that my simple requests were being met with belligerence. I'd also be pissed that I was just doing my job, and this guy's trying was trying to pick a fight. I'm a police officer, and I need to be obeyed (to borrow from PCM).

Again, legalities aside, both of these guys have legit complaints. If you land on the civil libertarian side of this debate, you side with Gates. If you land on the law and order side of this, you side with Crowley. Me, I think they both need to man up and shake hands. Enough already. They both look ridiculous.

Anonymous said...

Gates: "Finally home from 20+ hours of travel. Man I'm exhausted. Dammit, I can't get my door open! Ok, now I'm inside. Wait a minute...why is a cop entering my house? Seriously, what the fuck? Why is he in my house? Why is he asking me for ID? Get the fuck out of my house! Why did you follow me in here? Is it because I'm black? Are you a racist? Give me your name and badge number!"

Gates continued: "You won't give me your name and badge number. Oh, good, some more police are out at the porch. They will make you give me your name and badge number. Oh, wait, they are not helping. They are standing around while I am being arrested. Now I am in handcuffs. This is very aggravating and embarrassing. Now I am in the back of a police car. Now I am having my mugshot taken. Now I am sitting in jail. Now I am being raped by one of the other inmates. I hope I can get that policeman's badge, who ever he was."

Crowley: "Break-in in progress. Shit, there are two guys already in the house...but the lights are on. Hmmm. Are they armed? Crap, this guy is yelling at me. Show me some ID sir! Ok, he's the owner. Time to go. Wait, he's still yelling at me. Look buddy, how about a little respect? I was trying to protect YOUR property! Somebody reported a break-in. Fine, bring it outside if you want to talk. Dammit, he's following me out and still yelling. Fuck this, you're going in."

Crowley: continued: "Oh it feels so good to handcuff this guy. It actually brings me pleasure. What? The chief stands behind my arrest? I am not surprised, but it is still awesome. No disciplinary action. I am loooovin' life right now. It is so cool that I have a job where I get to do that to people. Well, I better go teach my Behaviorial Profiling class.

Doug said...

Hey Anon,

Well, you took it to the natural conclusion for the Civil Libertarian perspective.

Anyone else what to continue the story form the Law and Order perspective?

(In the interest of full disclosure, I tend to land on the civil liberties side of most debates, but I'm trying to stay middle of the road here.)

PCM said...

10-8, keep commenting. I'm proud to say I have never deleted any comment from this blog because I have never had a reason to (luckily I have a very thick skin!).

Your comments are certainly acceptable. You've got great things to say and I welcome them here. I just wanted to put in a word so this thread wouldn't become a flame war. It hasn't.

And you should always talk to and educate stubborn people. I'm a teacher. That's what I do. Just do it nicely, stick to fact-based arguments, and don't make them say you're right. Then the next thing you know, they might be quoting your argument to others.

PCM said...

Doug, great perspective at looking at both sides.

Can I also add there there may be some form of catharsis here from America and race. I mean hell, we just elected a black president. Can we remember how impossible that was, say, all of 10 months ago?

So now here's a case where we can breath a sigh of relief. Yes, there still is racism in this country (though I don't think this case demonstrates it). Yes, things have gotten better. Yes, there's a way to go. And yes, there are too many people, black people in particular, who get arrested and put behind bars in America. The land of the free shouldn't be the all-time incarceration winner in the history of the world.

PCM said...

I haven't had time to read all the comments yet (but thanks for commenting). I'm sitting in Merida, Mexico. On vacation.

If you happen to have a criminal justice textbook laying around (I do, don't you?), look at it. If not, look at wikipedia. At first glance it seems to be mostly correct. http://en.wikipedia.org/wiki/Fourth_Amendment_to_the_United_States_Constitution

I can't say enough how wrong it is to say that the officer didn't have legal justification to be in that house. It has nothing to do with probable cause (which in any case might have been met, with the caller there in person).

The police officer in the Gates' case did *nothing* wrong legally. He was not conducting a search of the home. He had many good legal reasons to be in that house. Gates was, by the letter of the laws, disorder and therefore subject to arrest, at the discretion of the police officer.

But many if not most of might be, at some point in the day, subject to arrest. That doesn't make it right.

PCM said...

Anonymous, in the case you ask about above. The answer is yes, that person could be locked up for disorderly.

Without a doubt.

That's why police have discretion and training and education. So they don't do stupid things.

And your example (intentionally?) parallels a tragic case in NYC very recently where that "bum" was an undercover cop and ended up shooting and killing the owner.

Anonymous said...

The other thing that seems to be missing from the police report is the part where Sgt. Crowley asked witness Lucia Whalen:

"I don't see the black men with the backpacks at the door now -- where did the black men with the backpacks go?"

Can anyone here guess why the report doesn't get into that. I am pretty sure the question was asked of Ms. Whelan. I also think I have a pretty good idea of why the report fails to mention it. Hint: it is related to the issue of probable cause for Sgt. Crowley's subsequent entry.

Anonymous said...

I can't say enough how wrong it is to say that the officer didn't have legal justification to be in that house.

Um, no PCM, you are incorrect. See, Reardon v. Wroan, 811 F.2d 1025 (7th Cir. 1987) (Probable cause required and not automatically provided by 911 burglary call); In re Sealed Case, 153 F.3d 759 (DC Cir 1998) (suggesting, in dicta that probable cause to enter would be extinguished by homeowner id'ing himself at stuck door).

Wikipedia nice, but sometimes you have to drill down to the cases.

Here is Reardon:

http://openjurist.org/811/f2d/1025

Here is sealed case:

http://bulk.resource.org/courts.gov/c/F3/153/153.F3d.759.96-3167.html

PCM said...

Had Gates presented his picture and address ID at the door, he could have told the officer not to enter. But if Gates went to get ID (which I think he did), the officer had every legal right to follow him in that house. At this point he was a suspect. You don't let suspects walk away.

911 calls in of themselves don't give you probable cause for anything (otherwise police would be calling 911 all too often). But in this case the officer could enter the house without probable cause.

Sgt. T said...

Short drop in. For those that haven't seen it, the President did a few minutes in the press room today on this subject where he owned his role in ratcheting up the situation. Many presidents have done much worse without so much as a glance back over their shoulder. He didn't send the press secretary, he didn't send a staffer. He stood up and faced it.

http://www.youtube.com/watch?v=WkKf0QrsI4A

Anonymous said...

But in this case the officer could enter the house without probable cause.

There are a couple problems with a person in your prestigious position saying such an untrue thing, PCM.

First, homeowners will mutiny if they ever find out that fooling around with their own doors means that police can search your house (unless you happen to have id at the front door when Officer Throwdownroach gets there). It is hard to believe that you believe this.

Second, your attitude encourages bad police report writing. You are correct to the extent that Gates' behavior at the front door could have (in conjunction with the other circumstances) given rise to probable cause. The main reason I believe that it did not is because of the way Sgt. Crowley's report fails to deal with this issue. If he really had PC at that threshold, then his articulation in the report was hella poor. This is not the way to help policemen win the civil suits brought against them.

Anonymous said...

Oh, and another problem:

Third, lets imagine that Gates was a lookout of sorts for an armed accomplice who was in the house. Where would Sgt. Crowley be safer: inside the house? or outside the house?

Four words to help guide your thinking: (i) Binghamton, (ii) Pittsburgh, (iii) Kleebold, and (iv) Mixon.

Motorcop said...

'means that police can search your house'

Peter never said that. He said the cop could enter the house because the citizen was still a suspect until he produced the ID. He's right.

Anonymous said...

I am saying that the homeowner needs a chance to id with homeowner inside and policeman outside.

As I understand PCM, he is saying that the policeman gets to come in until the id is produced, with the practical result that:

(i) the homeowner may be able to keep the policeman out if he brings good id to the door; but

(ii) he is going to get his home sear . . . err, I mean protective swept if he does not have id right at the door right away.

PCM's view is legally incorrect, but, perhaps more importantly, gives the police waaaay too much power to enter one's home. I don't know what percentage of burglary reports are actual burglaries, but I do know that the percentage of burglary reports where the burglar shows up at the front door pretending to to be the homeowner is miniscule, if not zero. It is not impossible that the person at the door is the burglar, but it is highly improbable. I emphasized the last word because it is absolutely key in this context.

I know that PCM and his Israeli police buddy from John Jay are trying like heck to make the illegal entry a non-issue. However, they are going to have to do better than the old denial approach.

Motorcop said...

Peter is correct. Until the homeowner satisfies the cop that it's his home, it's a potential crime scene. The cop lawfully can enter the premises. This issue comes up all the time with silent alarms. Sensor goes off, homeowner doesn't know it, doesn't answer the phone when the alarm company calls, we get called, we show up, the homeowner goes nuclear. Until you show me the ID, I have no idea who you are. Screaming at me doesn't help. Just tell me where I'll find your ID and we'll resolve this.

Motorcop said...

'I am saying that the homeowner needs a chance to id with homeowner inside and policeman outside.'

Nope. A cop responding to a possible B&E isn't Avon calling. You don't tell us to wait outside while you disappear inside the house. We have no idea who you are. You don't want cops showing up at your door and coming inside? Call a locksmith and don't break down the door when you're locked out.

Marc S. said...

You know, or step outside and deal with the cop. All he's gonna want is confirmation you're the resident and he'll gladly be on his way.

Anonymous said...

A cop responding to a possible B&E isn't Avon calling. You don't tell us to wait outside while you disappear inside the house. We have no idea who you are. You don't want cops showing up at your door and coming inside? Call a locksmith and don't break down the door when you're locked out.

If Gates broke down the door then there would have been probable cause. That isn't the issue. Instead Gates entered through the back with a key and was on the phone with maintenance, just like any rightful occupant would do.

The standard isn't "possible B&E," but rather probable cause of B&E. This precisely because police don't belong in our homes at the drop of hat. Fourth Amendment sez.

PCM said...

Thanks for getting my back, motorcop.

I might also add that once I am in that house, legally, and if I see something illegal, you know, for personal consumption (I mean hypothetically and not in the Gates' case), I can get a nice CDS lockup out of it.

If homeowners want to revolt, maybe they should. I didn't agree with all the laws and the powers I had as a cop, but I enforced the laws and used every tool I could.

I played by the rules, fair or not, because the rules are heavily biased in favor of police. Don't blame police. If you don't like it, change the rules.

Anonymous said...

There is no contraband in my house that I know of. In the previous house, which I rented, there was a glass pipe with traces of some kind of residue in its bowl, which I did not discover for nine months because it was in a compartment (old milk door) that was stuck shut in the summertime. Once I stumbled upon the stuff by accident, I got rid of it. Before that it was a potential, but unknowable, liability. So there is one concern.

The bigger concern is the policeman who will throw something down (doesn't have to be drugs) in order to make that arrest and get that raise.

The best solution is that policemen just stay out of my house unless they really have probable cause. And, even though you refuse to admit it, the law is already on my side on that one.

Anonymous said...

And let's talk about my new house for a second:

It came with a key that would not open the front door. Well, not exactly. I got the door open once or twice when I turned the key just right. I took this as encouragement to struggle with that lock and key on numerous occasions. Sometimes for as much as 10 minutes I am sure. Right in front of all my new neighbors. I finally broke down, after a couple of months, and got a copy of my wife's key.

Even though you consider that as an effective invitation to have police inside my house, I did not then and still don't. It is simply not probable cause, just like the same thing was not probable cause in the Gates / Crowley case.

Anonymous said...

Look at it this way, PCM:

I have found ingesting THC to be a tremendously enjoyable experience. That said, there is none in my home, there is none in my car, there is none in my blood, and there is none even in my hair strands. Why? Because it is illegal and I follow the law. There is a big negative impact on my quality of life because of this law, but the law in the US is the law and I follow it.

By the same token (no pun intended), I expect police to know and follow the law, too -- even when it helps instead of hurts me. I expect professors who teach the police to teach the law. Teach them to stay out of my house, please.

Signed,

A Law Abiding Citizen

JVN said...

Reading the police report you'll see Gates never ordered the sergeant to leave the house. That means there was consent for the officer to be inside so no 4th amendment issues.

Anonymous said...

Um, no. Failure to obstruct the officer does not equal consent.

When the civil suit comes, the theory the police will go with on the entry issue is probable cause plus exigent circumstances. As discussed above, that is a wrong theory, but consent is ridiculous under the circumstances and will not be argued.

JVN said...

Anon the professor has already said he won't sue. There's plenty of cases establishing failure to object equals consent to enter. A quick peek on Lexis shows a bunch just in the last few weeks:

United States v. Foster, 2009 U.S. Dist. LEXIS 59161 (E.D. N.C. July 8, 2009).

United States v. Hicks, 2009 U.S. Dist. LEXIS 57013 (E.D. N.C. July 6, 2009).

United States v. McGraw, 2009 U.S. App. LEXIS 14393 (7th Cir. July 2, 2009).

United States v. Hill, 2009 U.S. App. LEXIS 13765 (5th Cir. June 19, 2009).

I also suggest you read "Knock and Talk" by law school Professor Craig Bradley.

JVN said...

Here's another good one, United States v. Riekenberg, 2009 U.S. Dist. LEXIS 53351 (D. Neb. June 24, 2009).

Some quotes from the case: "Consent can be inferred from conduct."

"The defendant never said the officers could not enter the apartment."

"A reasonable officer would have believed the defendant was agreeing to allow the officers to enter his apartment."

Anonymous said...

I understand that there is such a thing as non-verbal consent. However, the facts don't support it here at all (especially in view of the fact that this will be a 1983 case and not getting-rid-of-the-silly-exclusionary-rule-thru-the-backdoor case).

Anonymous said...

If Gates broke down the door then there would have been probable cause. That isn't the issue. Instead Gates entered through the back with a key and was on the phone with maintenance, just like any rightful occupant would do.

By Gates own account his driver helped him get the front door open by popping it with his shoulder, which is what prompted the woman who works in the area to call the police.

And like motorcop said, we don't know who you are. Until we verify you're the owner, disappearing isn't an option. This can all be done in a professional and courteous way, but those hands need to stay where I can see them.

Anonymous said...

And like motorcop said, we don't know who you are. Until we verify you're the owner, disappearing isn't an option. This can all be done in a professional and courteous way, but those hands need to stay where I can see them.

If you don't have probable cause you are not allowed to go in. It is that simple. An equivocal 911 call, by itself, is not probable cause. If you think you have probable cause, then you are going to want to articulate it a heck of a lot better than Crowley did on his report. Talking to the witness when she is on-scene is a good start. What she tells you might save your life, or it might cause you to go away without the neccessity of making a tough Fourth Amendment decision about entering a home uninvited.

You sound like the type who will have to learn the hard way. O well. I just wish PCM would clue in because of the fact that he is supposed to be a teacher and not just a typical popo cheerleader.

campbell said...

What's required, as stated very clearly in United States v. McConney.

"Those circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of a suspect, or some other consequence improperly frustrating legitimate law enforcement efforts."

Anonymous said...

United States v. McConney

In that case the police had search and arrest warrants, which were presumably suported by . . .






. . . wait for it . . .

















. . . wait for it . . .








. . . yup, you guessed . . .













. . . by this point . . .










. . . . haven't you? . . .














supported by probable cause. This is, of course, why upthd I pointed out that warrantless entry needed to be supported by probable cause. In a warrant situation, the probable cause issue has already been decided, at least tentatively, by a court. In a warrantless situation, the probable cause needs to come from the observations of the policemen and recited on their reports.

campbell said...

Take heart anon, you're not alone. Loads of guys think they can get rid of us on a domestic violence call with a "fuck off, you can't come in here without a warrant", with rather predictable results.

Anonymous said...

but those hands need to stay where I can see them.

And It also should be pointed out that if you really think the people in the house are armed, then going in alone and without backup is about the stupidest thing a policeman could do from a tactical standpoint. IOW, if you (or Sgt. Crowley) goes into the house, it is a way of indicating that you believe the putative homeowner really is the homeowner. And there goes your probable cause. QED.

Anonymous said...

Take heart anon, you're not alone. Loads of guys think they can get rid of us on a domestic violence call with a "fuck off, you can't come in here without a warrant", with rather predictable results.

If there is probable cause of domestic violence then you get to go in. And your basis for this probable cause determination needs to go into your report. If your basis is bogus, then you have violated the law and should be punished. Preferably severely.

Motorcop said...

'In that case the police had search and arrest warrants'

Irrelevant. This case has nothing to do with search or arrest warrants so McConney is unrelated. You might as well be talking about Miranda or Terry stops. The cops were not there to search or seize. They were responding to a crime in progress.

'you are not allowed to go in'

Wrong. The law isn't about being "allowed" to go in or not. That proves to me you don't know your subject. The penalty for not having probable cause &/or lack of exigent is the evidence is quashed. Being "allowed" anything isn't even an issue. The cop isn't sent to bed without his supper if he doesn't have "permission." Because no search or seizure went down here your argument is pointless anyway. As you've been told repeatedly none of this matters. What happened in the house has NO BEARING on the arrest. The entire offense happened outside the house. There is no "fruits of the poisonous tree" issue here.

'it might cause you to go away without the neccessity of making a tough Fourth Amendment decision about entering a home uninvited'

Pure gibberish. It's a possible crime in process. No warrant, no seizure involved. No 4th Amendment issue. The homeowner was not identified until he provided his DL to the cop after the cop entered the premises. We don't need permission from someone who may be a perpetrator before we enter a house that may not even be his. It's baldly ridiculous to suggest the law requires this.

'you believe the putative homeowner really is the homeowner. And there goes your probable cause.'

More gibberish. Tactical considerations never enter into a PC test. The test is the officer's observations. If the defense tries to raise tactics in a PC challenge, the judge will disallow.

'probable cause determination needs to go into your report'

Pointless. That issue is irrelevant to this arrest. What happened in the house established a narrative for why the officer was there. He documented the entire event starting with his arrival at the scene. They could've been dancing in the house for all that matters. The crime happened 100% outside the house.

'If your basis is bogus, then you have violated the law and should be punished'

Says who? If a case is flawed, the officer isn't "punished." The case is dismissed. The officer had reasonable belief a crime in progress was occurring in the property. That's all he needed. The whole issue ONCE AGAIN about PC is irrelevant to the arrest. The offense happened 100% outside the house and was witnessed by many officers.

It's painfully clear to me you have never stepped inside a courtroom based on what you're posting here. I suggest you stop trying to teach nonsense to those who know the law. It's unproductive. The only reason I wasted my time typing all this is because there may be a slim chance you've been reading something and are seriously confused. If you're just a troll I'm sorry I wasted my time.

Anonymous said...

1. I didn't bring up McConney. Somebody incorrectly said that it showed that probable cause is not necessary for an exigent circumstances entry. I merely cleared up that error. If you want to read the relevant cases, then read Reardon and In re Sealed case cited above.

2. The exclusionary rule is but one remedy for when a policeman violates the Fourth Amendment with an illegal entry, but it is only for guilty people and therefore does not deter police. Remedies for innocent people are the more important ones for you to worry about. These include section 1983 actions and trespassing charges. I am more concerned about innocent homeowners. I could give two figs about guilty people.

3. Possible crime in progress means that the Fourth Amendment does not apply. *ay yi yi* When did you get back from Kandahar?

4. If the officer really believes that there are armed people in the house then he needs to act consistently with that professed belief. Otherwise his credibility is shot and it is safe to assume that everything he writes or says is a lie. It is a credibility issue.

5. The officer's status as a trespasser, acting outside the Fourth Amendment, is relevant to both Gates' justification defense to disorderly (and Crowley's knowledge of the same) as well as to the egregiousness of Crowley's failure to obey Massachusetts law by showing him the card.

campbell said...

Anon, what I'm trying to get through to you with the McConney cite is the kind of things that are going to be considered in court if someone decides to challenge that entry.(this is aside from the Gates arrest, which as has been pointed out, took place outside the house)

Say we get a 911 call from a woman screaming that her husband has just stabbed her in a fight. She's now locked herself in the bedroom and is on the phone. The husband answers the door and tells us to piss off. We go in anyways and subsequently arrest the husband for the stabbing. You seem to think that since the 911 call isn't PC, and he didn't answer the door with the bloody knife his hand, you as his defense attorney are going to be able to get that case dismissed because we entered without PC or a warrant.

Anonymous said...

Anon, what I'm trying to get through to you with the McConney cite is the kind of things that are going to be considered in court if someone decides to challenge that entry.

McConney was no challenged the entry. He was challenging a failure to knock. The police won because they had both: (i) probable cause (in the form of warrants); plus (ii) exigent circumstances.

That is the same thing Sgt. Crowley will need to show when Prof. Gates takes him to court for unlawful entry: probable cause plus exigent circumstances. Look, people, its just not that hard.

ay we get a 911 call from a woman screaming that her husband has just stabbed her in a fight. She's now locked herself in the bedroom and is on the phone. The husband answers the door and tells us to piss off. We go in anyways and subsequently arrest the husband for the stabbing. You seem to think that since the 911 call isn't PC, and he didn't answer the door with the bloody knife his hand, you as his defense attorney are going to be able to get that case dismissed because we entered without PC or a warrant.

That kind of telephone call is probable cause, unless police have some real good reasons to think it is a prank.

On the other hand, if a neighbor calls up and says "I think my neighbor is beating his wife because I saw them swearing at each other in their driveway just now." then that is not probable cause and you don't get your freebie search.

The particular call in the Gates case was not probable cause. This is because pressing on a stuck door may just be a homeowner with a stuck door. Even the 911 caller in this case said that she didn't necessarily think a break-in was going on.

Sgt. Crowley had a chance to develop probable cause at the scene by talking to one of the witnesses (not the 911 caller,as it turns out). Instead Crowley stupidly declined to talk to the witness and go right in when he saw a black man in the house. The choice to proceed immediately into the house without giving the homeowner a chance to id first was both unConstitutional and racist. I honestly believe that he would have given an old white man a chance to id without coming in uninvited (which is what he should have done anyway). Not only did Crowley act illegally, but it was the sight of the black man that made him decide to break the law.

Elle said...

All these "anon" postings are very hard to follow because several parties are involved. If someone can't even take two seconds to assign themselves a nickname, then you have to wonder how much time they put into formulating their own opinions.

Anonymous said...

Either that or he wants anonymity for some weird reason.

Anonymous said...

See, here is why I don't think there was PC from tis particular 911 call:

http://online.wsj.com/article/SB124870309847783787.html

BONUS: The artie quotes Dolores Jones-Brown!

campbell said...

Is that hypothetical domestic 911 call really probable cause? Can I arrest based solely on that call? Am I entering for search and/or seizure? Or do I have situation where a reasonable person would believe that entry is necessary to prevent harm to another person?

PCM said...

All you "anonymous" people, you can logon and get a handle and still be anonymous. It would make the discussion easier.

PCM said...

I'd write more but motorcop pretty much sums up all I have to say. Of course there's a chance we're wrong, but that would mean police everywhere are acting unlawfully and unconstitutionally. I don't believe that.

What motorcop says is how police act. It is how I acted. Morally right or morally wrong, that is how the law is applied in day-to-day situations. And these actions are (generally) backed up by the courts.

PCM said...

Campbell,
The entry is not for search or seizure. It can be to prevent harm to another person and can also be for an investigation of a felony crime in progress and can also be for officer safety.

Entry in and of itself does not (necessarily) require probably cause.

Let me give you another example: I'm chasing a suspected drug dealer and he runs into and breaks down the door of a house. Not his house. He runs through the house and out the back door.

Can I enter the house in pursuit? Yes. Can I then find drugs and arrest the (otherwise innocent) homeowner? Yes. Can I ask the homeowner to sit on a couch within lunging distance of a dresser before cuffing him? Yes. Can I then search the suspect (of course) and the couch and dresser he's near? Yes.

Did I have any probable cause to enter this home? Not really. And certainly not as it relates to the homeowner.

campbell said...

Of course there's a chance we're wrong, but that would mean police everywhere are acting unlawfully and unconstitutionally. I don't believe that.

Yeah, it's how we patrol in my dept. as well. I'm pretty sure we would have noticed all our cases getting dismissed if all these entries were illegal.

Like you've mentioned, 9 out of 10 people seemingly have no idea what their rights are. The one that always amuses me is the demand that they be allowed to call their lawyer from the back of my patrol car. Had a kid a couple months back that was absolutely sure I was only allowed to ask him three questions, like he was a genie or something.

Anonymous said...

Did I have any probable cause to enter this home? Not really. And certainly not as it relates to the homeowner.

The probable cause does not need to be against the homeowner, but it does need to be probable cause of a crime. For example, if someone sees you and runs into a house, then you can't go into the house on the theory that they are a burglar or a drug courier. You have exigent circumstances (suspicion of burglary, suspicion of drug courier), but you don't have probable cause because these suspicions, while highly exigent, are mere possibilities and not probabilities.

Please, please, please, PCM -- just read one case for me:

http://www.ca9.uscourts.gov/datastore/opinions/2009/07/16/07-15102.pdf

And if you want to know why this case seems so different than the everyday practice that you observed, the answer is simple:

you have dealt with cases where the entry is an issue that comes up under the exclusionary rule. Exclusionary rule cases make a mockery of the Fourth Amendment (which is why the exclusionary rule should be (and might soon be) dumped). If you want to understand what the Fourth Amendment really means (and as a professor you should), then you really need to read a few section 1983 putative illegal entry cases, like the one cited above in this post, or Reardon (cited above), or (when it comes out) Gates v. Crowley.

you can logon and get a handle and still be anonymous

They just use the handle to open up their own little investigations based on the handle. Believe me, I know from whence I speak on that. I think all the anonymous comments, save one, have been the same person so it shouldn't be too hard to understand the flow.

Motorcop said...

'just read one case for me'

I read it. The answer is simple. You're arguing an invalid precedent. The house in the Hopkins case was not a crime in progress. Crucial difference. Learn how precedent works my friend.

'They just use the handle to open up their own little investigations based on the handle'

Come again?

Anonymous said...

Come again?

Now c'mon Mr. Al...err... I mean Motorcop, you know how they can be.

PCM said...

Who is "they" and why do they care about what you say on this blog?

We're not talking violent overthrow of the US Government. We're talking nuances of probable cause and the 4th Amendment.

PCM said...

I read the summary of the case and agree wholeheartedly with Motorcop. They have very little in common. In progress is the main factor, certain. Probably other things, too.

For what it's worth, I agree with the court decision in the case of the drunk driving home arrest. Those cops indeed had no right to enter that home. Shameful they thought or pretended they did.

ckirksey said...

Came across this blog while researching Crowley/Gates incident. Boy you LEO people and wannabes do not repeat do not understand the fourth amendment. The comments by anon are to the point. Crowley did a very poor job of investigation when he came upon the scene of possible BE in progress. As anon says the 911 call is not PC. If you think Gates is a suspect then exactly what makes him a suspect? Black man standing behind glass door. Bingo!!

It is up to Crowley to establish that Gates does not legally belong in the house not the other way around. LEOs would like you to believe that but that is not the constitutional standard.

This is really scarely stuff to believe that LEOs think they can get away with this kind of stuff. More 1983 suits are needed but most of the defendents are poor and LEOs get away with it.

laurynangela said...

Should being an a-hole get to police get you locked up?

No. Contempt of Cop is not a valid reason to detain someone. Police often seem to forget that Sir Robert Peel who founded the police said: "The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence."
The police would do well to remember this. I understand that being a police officer can be a dangerous job at times, but this was your chosen career... You do not deserve any more respect than a butcher, or a baker. This was your chosen profession, not something imposed on you. Adding to that, the very nature of police work is known to encourage people that are attracted to the power associated with policing, I generally don't hold a lot of respect for the police, which is a shame, because as you have shown PCM, good cops do exist. :)