Comments on Cop in the Hood: Last word (yeah, right) on the Gates' case

Negligence is not the standard. Was it reasonable ...

2009-08-06T20:08:20.797-04:00

Negligence is not the standard. Was it reasonable for a reasonable LEO to know the law at the time of the alleged violation of a constitutional right. If there was a violation and the LEO should have known better than the LEO is at risk

I gotta stand up for Motorcop here. Since 4th amen...

2009-08-06T00:42:45.945-04:00

I gotta stand up for Motorcop here. Since 4th amendment issues are complicated, it's up the judge to decide.

If you want to sue the police and win, you usually have to prove "negligence" at some level. It's not easy. A decent cop acting in good faith will almost always be given the benefit of the doubt.

The only reason were talking the 4th amendment is ...

2009-08-05T13:58:25.511-04:00

The only reason were talking the 4th amendment is that if Crowely had PC or EC then when Gates was uncooperative Crowely could have been justified in his arrest.

All I say is this. Based on 911 call there was no EC. Lucia Whalen did not call it a Burglary despite prompting by 911 operator. Suspicious activity is not the same as crime in progress.

Did Gates presence in the house constitute PC?

Crowely did nothing wrong in investigating and in my opinion if he had handled it differently it might have ended with Gates thanking him for his diligence. Instead Crowely had a bad attitude and PO'd Gates (probably easy to do IMHO). If he had walked away without seeing ID what would have been the harm. If he still thought something was going on he could have called HUPD (HU owned the house) or checked DMV or other records to see who lived there. Crowely created the situation not Gates.

What I take away from Motorcops last comment is that since he and I agree that 4th amendment issues are complicated then all I ask of our public servants is to not arrest people if your not sure and you don't think anyone's safety is in jeopardy.

'What part of the fourth amendment do you not ...

2009-08-05T11:57:14.371-04:00

'What part of the fourth amendment do you not understand?'

Arguing search and plain view hypotheticals that have zilch to do with the Gates arrest proves nothing. Quoting an imaginary judge as proof means nothing. Here's how PC and EC work in the real world: judges decide, not cops, not suspects. Cop arrests suspect claiming PC/EC, suspect says no PC/EC, judge decides if there's PC/EC or not. Different judges rule different ways so until your case is calendared it's anybody's guess what'll happen.

Cops use their training and experience to determine if there's PC/EC. Usually we're right, sometimes we're wrong. A few times when cops are wrong, we're sued but usually we win. If we lose, the taxpayer foots the bill. That's how the system works. If a cop is arresting you and you start arguing PC/EC, you're wasting your time. You can't argue your way out of handcuffs or an arrest. Take it up with the judge.

OK here is one last comment for supposely well inf...

2009-08-05T09:05:56.533-04:00

OK here is one last comment for supposely well informed LEOs and LEO wannabes. The logic of the argument that Crowley had both PC and EC to the Gates house without permission is a follows.

Crowley was responding to a POSSIBLE be by two men race unknown, one maybe Hispanic. Suitcases involved. Crowley arrives on scene sees male behind glass door. Crowley goes to door and asks male to show some ID that he belongs in house. Males says OK and turns to go and retrive ID.

Crowley thinking this is a possible suspect enters house and follows male. Once inside Crowley looks around for possible illegal activity and sees several possible illegal guns in plain view. Crowley becomes very nervous and immediately orders male suspect to freeze and put his hands up. Crowley handcuffs the suspect. Crowley secures suspect and makes sweep of house. Finds evidence of further illegal activity.

Male suspect is arrested and charged. Hearing is held to surpress all evidence as being the results of an illegal search. Judge says to the state in allowing surpression: "What part of the fourth amendment do you not understand?"

If Crowley had PC and EC to enter Gates home then the above scenario would have been a legal search would it not?

Ckirksey, you're citing Payton rule and search...

2009-08-04T21:31:52.483-04:00

Ckirksey, you're citing Payton rule and search-and-seizure cases, not cases dealing with law enforcement entry during a possible burglary in progress. Your precedents cited are irrelevant to the Gates situation.

The first case you're citing, Shepard v. Davis, deals with the police visiting an identified suspect's known place of residence specifically to arrest him. The Gates situation is an entirely different matter; therefore, you're citing an inapplicable precedent. When the homeowner had not yet been identified or refuses to provide identification, as happened in the Gates situation, the police may lawfully enter a premises when they have reasonable belief a crime is in progress. Shepard has no effect.

The second case you reference, US v. Edmondson, similarly deals with law enforcement officers visiting an identified suspect's place of residence specifically to arrest him. Again, this is irrelevant to the Gates matter, although I can't resist commenting that the defendant in Edmondson was convicted and lost his appeal.

The third case you cite, US v. McClain, deals with admissibility of evidence seized in a warrantless search. Since no search nor seizure occured during the Gates matter, that again is irrelevant precedent. You have, unfortunately, shot yourself in the foot by citing McClain, however, because the court upheld the officers' entry into the residence.

I suspect you were reading the district court decision which was overturned by the United States Court of Appeals; the criminal defendants lost, and law enforcement won.

anon rules. btw, the proper legal analysis is tha...

2009-08-04T17:46:34.090-04:00

anon rules. btw, the proper legal analysis is that the popo needs both probable cause and exigent circumstances. Arguably, the circumstances were exigent because the suspected activity was a break in to a home (as opposed to a break in to an abandoned building). However, the suspicion did not amount to probable cause because, while the suspicion was suspicion of something serious, it was not a STRONG ENOUGH SUSPICION, PROBABILISTICALLY SPEAKING, TO BE PROBABLE CAUSE.

The consent argument that one policeman is making is total crap (this is why policemen aren't lawyers). One reason it is crap is because the police report doesn't establish consent (eg, by noting lack of non-consent). Another reason it is crap is because it flies in the face of the theory that Gates was yelling "racism" from the get-go. Imagine how it would have had to go down:

Crowley: Since you will not come inside, may I step in?

Gates: [opens door and waves Crowley in]

Crowley: How you like me now?

Gates: RACIST!!!!!!

N***a please.

No I am not a retired federal judge but I can read...

2009-08-04T16:51:07.804-04:00

No I am not a retired federal judge but I can read and comprehend.

Please see United Staes v. McClain.

Police thought they were at a possible BE. Court still said given the totality of the circumstances they still needed a warrant.

>Boy you LEO people and >wannabes do not re...

2009-08-04T10:43:44.864-04:00

>Boy you LEO people and
>wannabes do not repeat
>do not understand the
>fourth amendment.

Your qualifications are what that you know infinitely more about the fourth amendment?

Do please provide some examples of court decisions where the judge found a warrant is needed to respond to a possible burglary in progress call.

For all you foaming at the mouth in excitement about suing cops, here's a good example of how difficult it is to second guess a cop's discretion in court from an example of a suit against the LAPD dismissed yesterday:

http://preview.tinyurl.com/mpjhag

Food for thought: We also have addressed the issue...

2009-08-04T10:28:06.661-04:00

Food for thought:
We also have addressed the issue of implied consent. We have consistently
stated that “‘whatever relevance the implied consent doctrine may have in other
contexts, it is inappropriate to sanction entry into the home based upon inferred
consent.’” McClish, 483 F.3d at 1241 (quoting Gonzalez, 71 F.3d at 830).
Moreover, we have determined that a defendant’s act of opening his door, stepping
back, and placing his hands behind his head did not amount to implied consent to
be arrested. United States v. Edmondson, 791 F.2d 1512, 1515 (11th Cir. 1986).

If you as an LEO are relying on implied consent be prepared for a 1983 suit. Just get a damn warrant!!!

Came across this blog while researching Crowley/Ga...

2009-08-04T08:22:50.954-04:00

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.

However, I must disagree with anon concerning the validity of burglar alarm by its self as proving PC and EC. The BA just indicates a posssiblity of a BE not a probability. It is up to LEO to investigate then conclude.

Scenario: People are having pot party with BA set. People are a little disoriented and accidentally set the BA off. A few minutes pass but homeowner resets BA. But police on their way. Arrive at home. BA is off. LEO knocks on door cautiously. Homeowner opens inner door just slightly but leaves glass outer door closed and locked. LEPO asks about BA and permission to search. Permission denied. PC?? EC??

A selective reading of that thread at best. Anon,...

2009-08-02T23:55:14.726-04:00

A selective reading of that thread at best. Anon, amongst others, presented many good arguments and since there were no quotes from the cited decisions they could have been wrong. Just cause its on the internet doesn't mean its true. So given an equivocal interpretation of the situation I expect a law enforcement officer to come down on the side of the citizen or kick the question up the chain of command.

My personal ideas are at least as relevant as yours. Since not even judges or lawyers, let alone cops who even have less training in the law get it right all the time. That's why we have courts and we discuss this all the time.

I see it this way. Gates was on his own property. There was nothing that indicated exigent circumstances. Again I ask what if Gates had not answered the door because he was in the shower? Would crowely have had the right to break down the door? Even if gates was being "tumultous" he was no threat to anyone or anything. I have seen other cops walk away from far more tense situations so I guess I was surprised since this whole thing took less than ten minutes.

I'll look up those cases on westlaw though so I can read them.

No where in the arrest report does Sgt. Crowely...

2009-08-02T22:58:40.824-04:00
No where in the arrest report does Sgt. Crowely state that Gates consented to entry

It doesn't have to. In a situation like this, Mr. Gates must articulate objection to entry or consent to entry exists as a matter of law. That's well established precedent in Fourth Amendment caselaw.

This was discussed at length in another recent thread here with numerous USDC and USCA citations -- I think in the one with more than 100 responses. That's also where it was well established that Sergeant Crowley's entry into the residence was perfectly lawful.

Your examples have no bearing on this case

Of course they have bearing. USDC, USCA, and USSC precedent, as well as state caselaw, are critically relevant in all law enforcement encounters. If you don't understand that basic and fundamental keystone of American jurisprudence, I think you might want to educate yourself on how the law works before you instruct others on what the law does or does not allow.

While you are entitled to your opinion, your personal ideas do not dictate where the Fourth Amendment protections apply. What guides -- and restricts -- law enforcement is the established judicial precedent. You might not personally think Sergeant Crowley had the right to do what he did, but that's not the issue. The issue is whether the action would survive judicial review; that's where the caselaw is both critical and guides us.

The caselaw is solidly on the sergeant's side. There is absolutely no question his entry into that house was lawful.

JVN it is you who are wrong. As I have explained ...

2009-08-02T15:59:12.329-04:00
JVN it is you who are wrong. As I have explained before the 911 call could at best be interpreted as suspicious activity. When prompted by the 911 operator, caller Lucia Whalen, refused to characterize it as a burglary in progress.

You clearly did not read Sgt. Crowely's arrest report. No where in the arrest report does Sgt. Crowely state that Gates consented to entry and in fact Sgt. Crowely got no farther than the foyer and subsequently arrested Gates on Gates' front porch. I don't know where you come from but my front porch is part of my house. Your examples have no bearing on this case since there are facts as contained in transcripts.

I am not anti-cop and I know cops but I am zealously on the side of civil rights which is why as stupid and abhorrent Officer Justin Barrett's email to Yvonne Abraham was it is protected speech and I believe he should not be fired for it.

My bottom line is that I think Crowely got pissed at Gates and as opposed to walking away he abused his power.

Pinhead you're just flat wrong. You don't ...

2009-08-02T14:48:57.430-04:00
Pinhead you're just flat wrong. You don't understand the law. A warrant is not needed when responding to a possible burglary in progress. To say the law requires that only proves you don't know the law.

Plus Gates consented to the sergeant's entry. I established that in another thread with multiple case examples. With consent there is no 4th amendment objection.

Pinhead you seem to be anti-cop. That's too bad. Maybe do some ride-alongs and attend a citizen's academy. You'll get to know what law enforcement officers are really like that way.

Crowely had no right to be in the house, nor do I ...

2009-08-02T13:07:11.980-04:00
Crowely had no right to be in the house, nor do I believe he had a right to demand anything of anyone who came to the door, unless there were "exigent circumstances". Once Gates showed him ID he should have left. As I pointed out in my original post he could not have legally entered the house if Gates was not there or did not answer the door. He needed a warrant. His bullheadedness turned a reasonable action, investigation of suspicious activity, into a crime against Dr.Gates. Crowely has a right to yell anything at anyone in his own home. If Crowely didn't like it then he should have left.

Police are routinely violating the 4th amendment. If your a cop then you know it happens. Its great for pumping up arrest numbers but has little impact on crime.

Actions speak louder than words. I take it that you spoke to the Middlesex county DA and they told you why they didn't prosecute? The facts are they did not prosecute. If they thought the arrest was justified and there was sufficient evidence why would they not have done so. Especially as it leaves Sgt. Crowely twisting in the wind.

>The 4th amendment applies >to the entire c...

2009-08-02T11:58:39.954-04:00
>The 4th amendment applies
>to the entire country

Some states have a stricter standard because of their state constitutions. In my state our search and seizure thresholds are higher than what the USSC has mandated because of the state constitution.

> It seems that the Middlesex
>county DA agreed with me

That's not why they declined to prosecute.

10-8 if you had read my post you would have notice...

2009-08-02T11:43:27.291-04:00
10-8 if you had read my post you would have noticed that I was only comparing the differences in how the case was handled from the perspective of the initial investigation.

The 4th amendment applies to the entire country and my comments here have been focused on how I believe that Sgt. Crowley violated Dr. Gates 4th amendment rights. It seems that the Middlesex county DA agreed with me as the charges were dropped.

In the Moloney case NYPD searched the house after Moloney was voluntarily taken into custody. The search that revealed the Nunchaku and two unregistered hand guns happened subsequent to the arrest of Moloney and supposedly with the permission of his wife (this point is disputed by Moloney).

The Maloney case involves possession of nunchaku. ...

2009-08-02T11:14:40.447-04:00
The Maloney case involves possession of nunchaku.

Comparing that to the Gates situation is pointless. Different cops, different PD, different state, different laws. Some states have stricter standards than the US Constititional limits.

Officers react to the situation in front of them.

Pinhead, Good questions. I'll have to leave it...

2009-08-02T02:02:03.965-04:00
Pinhead,
Good questions. I'll have to leave it for others to respond for now. Computer running out of juice.

Let me contrast the behavior of the Cambridge Poli...

2009-08-01T22:18:53.012-04:00
Let me contrast the behavior of the Cambridge Police in the Gates case and and the New York City Police in the Moloney case (this is the case where Sonia Sotomayor and 2 other judges sided with the state against the defendant). By the way Moloney defended her decision in the case despite his losing. This is a 2nd Amendment case but the facts of the arrest are quite interesting.

A telephone lineman working on a lift outside of Moloney's house thought he saw Moloney pointing a rifle with a telescopic sight(it was not a rifle) at him. He called the police. They responded and asked Moloney if they could search the house. He refused. What then ensued was a 6 hour standoff until Moloney gave himself up, but did not assent to a search of his property.

What is interesting here is that if there was suspicion that the suspect had menaced someone with a firearm why didn't they just bust in? Why did the NYPD act so differently than CPD in a case where there was at least some suspicion of a firearm being involved and potentially being used in an unlawful way. I don't know what the Moloney 911 caller said but Moloney is white.

For Sgt T: CRIME IN PROGRESS: Disp...

2009-08-01T15:00:57.804-04:00
For Sgt T:

CRIME IN PROGRESS:

Dispatch: State your emergency.

Caller: People are breaking into 123 Main Street! Two men with masks broke the door off its hinges and ran inside. One of them had a rifle.

Dispatch: what is your name and social.

Caller: [provides identification]

SUSPICIOUS ACTIVITY

DISPATCH: 9-1-1 (inaudible) what's the exact location of your emergency?

CALLER: Hi, uhm, I'm actually at (inaudible) Ware Street in Cambridge in a house, number is 17 Ware Street.

DISPATCH: Ok ma'am. Your cellphone cut out. What's the address again?

CALLER: Hi, uhm, it's 17 Ware. That's W-A-R-E.

DISPATCH: The emergency's at 7 Ware street?

CALLER: No, sorry, some other woman is talking next to me. It's 17 one-seven Ware Street.

DISPATCH: What's the phone number you're calling me from?

CALLER: I'm calling you from my cell phone number.

DISPATCH: Ok what's the problem? Can you tell me exactly what happened?

CALLER: Uhm, I don't know what's happening. I just had a, uh, older woman standing here and she had noticed two gentlemen trying to get in a house at that number 17 Ware Street. And they kind of had to barge in and they broke the screen door and they finally got in and when I (inaudible) and looked, I went closer to the house a little bit after the gentlemen were already in the house I noticed two suitcases. So I'm not sure if these are two individuals who actually work there or maybe live ther.

DISPATCH: You think they may have been breaking in?

CALLER: Sir, I don't know. Because I have no idea. I just noticed --

DISPATCH: You think the possibility might have been there? What do you mean by barged in? Did they kick the door in?

CALLER: No they were pushing the door in, like uhm, uhm, like the screen part of the front door was, had like cuts --

DISPATCH: How did (inaudible) the door itself with the lock?

CALLER: They -- I didn't see a key or anything so -- I was a little bit away from the door, but I did notice that they pushed their --

Massachusetts police release a copy of the 911 and radio dispatch tapes in the arrest of Henry Louis Gates, Jr.
(ABC News Photo Illustration)
DISPATCH: What did the suitcases have to do with anything?

CALLER: I don't know I'm just saying that's what I saw. DISPATCH: (inaudible) that they broke into?

CALLER: No there's just a first floor, I don't even think that it's an apartment. It's 17 Ware Street. It's a house. It's just a yellow house. Number 17. I don't know if they live there and they just had a hard time with their key but I did notice that they had to use their shoulder to try and barge in. And they got in. I don't know if they had a key or not, because I couldn't see from my angle. But when I looked in closely that's what I saw.

DISPATCH: Was it a (inaudible) or Hispanic?

CALLER: Uhm...

DISPATCH: Are they still in the house?

CALLER: They're still in the house I believe, yeah.

DISPATCH: Were they white, black, or Hispanic?

CALLER: Uhm, well they were two larger men. One looked kind of Hispanic but I'm not really sure. And the other one entered and I didn't see what he looked like at all. I just saw her from a distance and this older woman was worried thinking someone's breaking into someone's house. They've been barging in and she interrupted me and that's when I had noticed otherwise I probably wouldn't have noticed it at all to be honest with you. So I was just calling because she was a concerned neighbor. I guess.

DISPATCH: OK, are you standing outside?

CALLER: I'm standing outside, yes.

DISPATCH: Alright police are on their way you can meet them when they get there. What's your last name?

CALLER: Yeah, my name is (censored)

DISPATCH: Ok they're on their way.

CALLER: OK. OK I guess I'll wait. Thanks.

Pinhead, I'm gonna ask you to articulate the d...

2009-08-01T13:20:12.251-04:00
Pinhead, I'm gonna ask you to articulate the difference between suspicious activity and a crime in progress in this particular case.

I like this Blog and most of what Dr. Moskos has t...

2009-08-01T12:01:08.335-04:00
I like this Blog and most of what Dr. Moskos has to say but his post on this subject seems to me to show some cognitive dissonance.

I see no grey area in this case, even if Gate is a pompous jerk and played the race card without reason. Crowley was wrong. I don't know what he really thinks of black people but he was doing what a lot of cops do and that's go in to a situation with a bad attitude looking to make an arrest or find wrongdoing. Just like the cops who run your plates for no reason other than going on a fishing expedition (you cops know you do it).

Why was Crowley wrong. He was investigating a report of suspicious activity, not a crime in progress. What if Gates had not answered the door, maybe he's showering, on the crapper or just went out for pizza? Crowely could have walked around the house but that's it. What if the police were busy with more important things and he shows up 1 hour later?

Crowely in later interviews ran up the old "thin blue line" argument, I'm the only one on seen and my safety is paramount... Well all he had to do was walk away and he was in no danger. Remember there was no suggestion of any kind of violence here just some suspicious activity.

The other thing this situation brings up is how ineffective the police are in fighting property crime which is a whole other subject which I'll ask Dr. Moskos to comment on.

Let me tell you a story. A true story. Way back ...

2009-07-31T18:08:38.337-04:00
Let me tell you a story. A true story.

Way back in 1990 I was a young lad of 21 years old and I unwittingly moved into a bad apartment complex in a new city. Gradually, the thugs there figured out that I had a job and probably had at least a little money. One reason I had money is because I did not spend any money on drugs beyond beer. I could not wait for the end of my 6 month lease so I could move to a safer pace.

One night in the last month of my lease, somebody decided to try to break in in the middle of the night. I heard this and called the police on 911. While giving them my info I collected up a bat and the biggest knife I had. They said that a policeman would be right out. Whoever was trying to break in soon gave up. I poured some bleach into a bucket and waited with my bat and my knife in case they came back. I also got my id (state driver's license with my pic and address) and put it near the front door for when the police came.

I waited 45 minutes. Gradually the adrenaline wore off. I wondered where the police were, but I figured that maybe they had bigger fish to fry. I went to bed and I think I even fell asleep.

Over 90 minutes after I called the police, I saw the play of overhead lights on my bedroom window. Very soon after that the pounding on my door started. I answered the door in less than 30 seconds (it was a tiny apartment). Because of how hard the pounding was, I think the door would have been broken if I had been 10 seconds slower to the door. As I unlocked the door, I grabbed my id and then opened the door.

I can't remember what the policeman at the door said, if anything, but I quickly told him I lived there and had called the police earlier while showing my id. The policeman looked at my id and seemed to realize that I really lived there. None of this was surprising to me.

Then a surprising thing happened. The policeman still wanted to come in. I said that there was no need, and this seemed to make him angry. He held my id and tried to look around me as much as he could, looking all around my living room / kitchenette from my front doorway, but not speaking further. I also said no more. Thankfully there were no drugs inside. At this point I was beginning to get annoyed. I mean, I think I am a pretty tolerant guy, and was willing to take in stride the 90 plus minutes response time for a genuine emergency call. I was also willing to take in stride the pounding and almost breaking my door, which would have been understandable if the response was quick, but was somewhat less understandable given how long I had been kept waiting. Still, whatever. However, when he was standing there with my id, looking for an excuse to come in against my will, I began to get angry inside my head. I did not show it, however. Even at the tender age of 21, I knew that you don't mess with cops.

After a little while of the peeping and glaring game in my doorway, the policeman's partner sitting in the patrol car called him back. It was clear that he had seen this kind of behavior from his partner before. The angry policeman grunted, handed me back my id and left without saying goodbye.

So don't tell me they don't look for any excuse to get into the dwelling of an innocent homeowner. I know that they do. From personal experience.

Comments on Cop in the Hood: Last word (yeah, right) on the Gates' case

Negligence is not the standard. Was it reasonable ...

I gotta stand up for Motorcop here. Since 4th amen...

The only reason were talking the 4th amendment is ...

'What part of the fourth amendment do you not ...

OK here is one last comment for supposely well inf...

Ckirksey, you're citing Payton rule and search...

anon rules. btw, the proper legal analysis is tha...

No I am not a retired federal judge but I can read...

>Boy you LEO people and >wannabes do not re...

Food for thought: We also have addressed the issue...

Came across this blog while researching Crowley/Ga...

A selective reading of that thread at best. Anon,...

No where in the arrest report does Sgt. Crowely...

JVN it is you who are wrong. As I have explained ...

Pinhead you're just flat wrong. You don't ...

Crowely had no right to be in the house, nor do I ...

>The 4th amendment applies >to the entire c...

10-8 if you had read my post you would have notice...

The Maloney case involves possession of nunchaku. ...

Pinhead, Good questions. I'll have to leave it...

Let me contrast the behavior of the Cambridge Poli...

For Sgt T: CRIME IN PROGRESS: Disp...

Pinhead, I'm gonna ask you to articulate the d...

I like this Blog and most of what Dr. Moskos has t...

Let me tell you a story. A true story. Way back ...