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by Peter Moskos

July 28, 2009

Last word (yeah, right) on the Gates' case

The 911 call is here:

Part of the 911 tape is here:

Here is my take on the matter. Only the first three points are new.

1) The 911 call was excellent. A woman saw something suspicious and reported it. Race was not mentioned. In fact, the caller specifically said she could not determine race and raised the possibility that the people lived there. But better safe than sorry.

2) The call was dispatched as typical, with the officer knowing very little about the actual 911 call. But the 911 operate seems to have done a pretty job at getting the relevant info to the dispatcher.

3) Once a wagon is called for, it means somebody is going to be put in it. It's not clear about the time frame or officer's location at this point. I don't know if the clip above is complete or edited or what.

4) The officer had every legal right to be in the house and needed to investigate a possible burglary.

5) The arrest of Gates was dumb. That does not mean the arrest was wrong. The arrest was dumb because it Henry Louis Gates Jr. and you don't want discretionary arrests for disorderly conduct to become national news. I thought so on day one and I still think so.

And thank you for all your comments. It's been a great discussion. Too bad I've been in Mexico, missing all the fun.


Motorcop said...

'The arrest was dumb because it Henry Louis Gates Jr.'

Disagree for several reasons. (1) I never heard of Henry Gates until this incident hit the headlines and same for every cop I know. To academics maybe he's famous but to an ordinary Joe he was unknown. I can't base an arrest decision on information completely unknown to me. The sergeant may not have known who Gates was, after all there are a lot of Harvard and MIT professors. (2) Gates was going to make a stink no matter what. Arguably the sergeant would be in more of a jam if he didn't make the arrest. I may also have written Gates for failure to obey based on what I read in the report. Don't know if they can do that in Mass. but we can and do. I would give him a pass on resisting because of the cane. (3) You can't be an effective officer if you worry about tomorrow's headlines. People threaten to sue or go to the media all the time. It's just white noise after a while. It shouldn't even enter your thought process because it fills your head with the wrong priorities. (4) Most important: you can't establish a special standard for celebrities. That's a slippery slope that will leave you ass over elbows if you try to go down it. Will some celebrities make a stink if you bust them? You bet. It goes with the territory. That's why you need a thick skin. I've cited and arrested my share of famous people over the years. Most are polite, a few play the "do you know who I am" card.

Anonymous said...

Quick hypothetical:

911 call. Neighbor reports that he suspects a burglary because he sees someone going into nearby house that he does not recognize the people. Nothing more, nothing less.

Police officer answers call, knocks at door and "suspect" answers the door at the house in question. Police officer asks the "suspect" to come out. "Suspect" declines, but says that he is willing to fetch id and mortgage papers to show ownership while officer waits outside.

Can the police officer legally go in at that point?

Does the answer depend upon how much dispatch has told him about the call?

Jaguar said...

Disagree for several reasons.

I agree with MC, although I did know who Mr. Gates was before his brush with infamy. We have quite a few high maintenance citizens in my present jurisdiction. They receive the same treatment as anyone else. I've had one very high profile arrest in my career on a more serious charge than Mr. Gates earned. I received some unwanted press as a result, but I expected that would happen the minute I realized who the suspect was.

Quick hypothetical

Anon, no succinct answer can be given to your hypothetical because the information you provide is far too vague.

someone going into the nearby house

How did they enter? With keys at the door? Through an open window? After smashing a patio door? By prying up a garage door with a tire-iron and squirming under the gap? The description of the entry is critical to determining if it's a possible burglary before we even approach the house.

Without knowing the specific details of the first portion of the hypothetical, no clear answer can be given. These sorts of details would come from dispatch and, possibly, a prior conversation with the PR (copspeak for "person reporting").

Anonymous said...

Okay, let's play this out. I am the neighbor. I meet the police officer out in the street before he goes to the house. Ask me what you like.

How did they enter? Did they have keys?

They seemed to have some difficulty at the door, it took them a minute or 2 or 3 to get in. I was too far away to see whether they were using a key, a credit card or any other sort of implement. It seemed like they pushed on the door at one point for a few seconds, but mostly they just seemed to be fiddling with something, possibly a key, possibly not, in the lock.

Did they enter through an open window or smash a patio door or use a tire iron on the garage door?

No. Definitely not. I think they do not live there because I think I know the appearance of the people who live there (don't know them personally) and these were not the people who I think live there.

Any more questions? Do you know enuf to go in warrantless at this point?


The Hypothetical Neighbor

Anonymous said...

I will also be playing the part of the person who shows up at the door if you decide to go up to the door. You can ask any questions of this hypothetical person as well.


Hypothetical person who shows up at the door.

Anonymous said...

Let's be clear what the plot is:

1. 911 gets a call where a witness reports something that she thinks may or may not be a breaking and entering. To be more specific, the caller doesn't think a B&E is going on, but another witness (who is not calling for some reason) is more suspicious of what is being observed at Gates' front door.

2. 911 doesn't have information that would, in and of itself, probable cause to enter Gates home at that point. Of course, what is supposed to happen is that dispatch is supposed to provide an officer with full info about the suspected B&E, including both reasons to be suspicious (one lady thinks a B&E is happening) and reasons NOT to be suspicious (another lady thinks it is just innocent behavior). Then what is supposed to happen is that the officer is supposed to investigate outside the home and see whether probable cause develops based on his further observations. There are many ways he might do this. He might talk to the witness who met him at the scene and find out more specifically why she thinks there was a B&E and not just a homeowner going in. He might check the outside of the house for visible damage to the door and broken windows. He might try to watch the perimeter of the house until backup arrives. He might ring the doorbell and see if the person answers the door acts like the homeowner or does not act like the homeowner. All the while the officer should be: (i) trying to collect enough info to find probable cause; and, at the same time (ii) trying to find enough info to drop the suspicion that a B&E has taken place.

3. Item #2 says what is supposed to happen. Sadly, there is a police plot and it is not what happens.

to be continued

Anonymous said...

4. Instead what happens is this:

- dispatch selectively gives reponding officer info it has supporting probable case

- dispatch selectively withholds from officer information it has negating probable cause (caller has doubts about B&E, caller sees the "suspects" bringing luggage INTO the house)

- selectively informed responding officer gets to scene and encounters the witness (not the caller) who suspects B&E has taken place

- officer declines to ask her why she thinks a B&E happened, he just has her go away. does she think a B&E happened mostly because the suspects are black? Maybe, but the responding officer does not want to know this. He wants to shield himself from any info that might make it more clear that he needs to stay out the house. So he doesn't talk to the witness.

- officer doesn't look for visible damage to the door. Why? Probably because there isn't none. It was just a sticky door. But the officer does not want to know this. It might cut against his prerogative (such as it is) to enter the house. So he shields himself from these potential "bad" facts.

- officer encounters person at the door who (we can be pretty sure) indicates in some fashion that he has every right to be in the house. Does officer give the man a chance to prove he belongs in the house? No. Instead, he wants the man to come out so that he can cuff him and run around inside his house.

- man refuses to come out (as is his lawful right). Normally disobedience to an LEO's request made in course of an investigation is obstruction, but there seems to be a special rule (thank goodness!) that police cannot order you out of your house. Officer is momentarily frustrated in his quest for a freebie search.

- the frustration is only momentary. Officer decides that the "suspect's" refusal to come out on the porch and be cuffed while the officer runs around inside looking for contraband is a form of "unco-operativeness" that further supports the entry. There is some risk to going forward with the freebie search at this point, because there might be an exclusionary rule hearing or a 1983 suit later, but officer has faith that the carefully selected info he has is enough to support his cherished freebie search. He has faith that any exclusionary rule hearing will be a joke (because they always are). The remaining residual risk of a 1983 suit is a risk he decides to take. He is going to go in.

- But why not wait for backup? Isn't the situation a dangerous one to handle alone, especially when there is no indication of hostages? Couldn't backup secure the perimeter while the man gets his id. If it turns out the man really isn't coming back with id, isn't it safer and more secure to handle that eventuality with backup, rather than without? You might think that, unless you are a policeman. If you are a policeman then you understand that waiting for backup and securing the perimeter PUTS THE FREEBIE SEARCH IN JEOPARDY. There is a good chance the "suspect" will in fact show up at the door with good id while waiting for backup. That would kill the freebie search, and this a good policeman cannot allow to happen.

to be continued

Anonymous said...

5. So the officer enters. The "suspect" has id. To put it in cop jargon: uh oh, spaghettios! And now the "suspect" wants to file a complaint. Double Uh oh spaghettios.

6. The responding officer gets an idea. He will continue to escalate the situation. Hopefully the homeowner will push him or touch him or at least move his cane in a "threatening" manner.

7. Instead the suspect keeps his harangue verbal and does nothing that can be considered as an assault, not even under the loose standards of the popo-friendly court system, well stocked with its ex-prosecutor judges. The officer thinks: "C'mon, c'mon, Mr. Black Homeowner, move that cane. Here, look, another policeman (Figueroa?) is coming into your house. Here, look, I am calling for even more policemen on my radio. You need to get angrier. I need to pre-empt that complaint, especially since my entry was kind of dicey." Then, as the pure verbal harangue continues, the officer thinks: "Triple uh oh spahettios!"

8. You know what happens next. Advantage Crowley!

And that, in a nutshell is the plot.

Jaguar said...

Anon, many of your ideas about how police officers think are not grounded in reality. When officers receive a call for a possible B&E, their first thought isn't how they might turn this into an opportunity to snoop in someone's home should it turn out to be a false alarm.

Equally worth noting, probable cause isn't the singular issue in the officers' thoughts when they're at the threshold of a residence like this. It's not moot court; they're not readying for an argument about precedent with a fistful of index cards.

Yes, PC is a consideration, but issues like officer safety, controlling the scene, and many more are taking up much of their focus. When I have a call like this, I'm primarily thinking about getting out alive and how I might resolve the situation if it turns 101 different ways. I'm not worrying if I'll be sued, because in nearly two decades of police work, I've learned that the threat of litigation is a common but empty one. I've had elementary school kids tell me they'll sue me.

If I do my job diligently and follow my training, I know it's very likely I won't be sued, but the taxpayer will pay the cost if I am. I also have to worry about being overly cautious to the point where I could get my department sued. What if it wasn't Mr. Gates in that house, if the officer was as meek as you advocate? What if a B&E really was in progress? If the officers walked away while Mr. Gates's possessions were being bagged up without fully investigating the call, the fallout would not be pretty.

I'm guessing here you might be a law student. I think spending a great deal of time reading appellate cases gives law students a somewhat myopic view of reality. The chance of any kind of legal action against officers in a situation like the Gates matter for trespassing on a possible B&E call after entering the home, in addition to your other legal theories, are close to zero.

While hornbooks and casebooks are filled with examples of notable precedents, a gander at courthouse records will tell you a broader and far more complete story. Simply put, most plaintiffs fail before the game even starts. A massive percentage of cases against police departments and officers never make it over the hurdle of a motion for summary judgment by the city. Cases like the 9th Circuit matter you referenced are extraordinarily rare.

(concluded in next comment)

PCM said...

I haven't had time to read the detailed case yet... but as to the first, Jaguar is right, each case is different and it's tough to talk about hypotheticals (though I certainly will try).

But let me add another little important detail. The "facts" of a case all depend on the responding officer's perspective (think Rashaoon). If two officers see a guy walking down the street, it might be perfectly legal for one officer to stop and frisk than person. But if his or her partner did the same, it would be an unconstitutional stop.

It all depends on the "totality of the circumstances" and the officer's ability to articulate justification for his or her activities.

The officer's experience with a suspect, the presence of drug dealing nearby, what the officer saw (or thought he saw), the officer's level of fear (based both on the environment and on the officer's physical and emotional state), all these play into what an officer can use to justify the reasonable suspicion needed for a stop and frisk and the probable cause needed for a search or arrest.

In many ways, the right or wrong of any given action depends more on an officer's ability to perceive the "facts" and the officer's ability to articulate these "facts" than on the actual so-called facts themselves.

Jaguar said...

(concluded from the comment above PCM)

Possible B&E calls are one of the most common that modern police officers face because so many residences and businesses use alarm systems these days. Now compare the number of actual calls to the number of police officers successfully sued in the type of action you advocate, and you'll see you have a better chance of being hit by lightning while holding a winning Powerball ticket as you soak in a hottub with five naked Playboy bunnies.

In reality, police work is not like "COPS" or "The Shield" or whatever show you enjoy on TV. It's about resolving problems, many of them quite mundane. The police are curbside mediators and problem solvers as much as they are enforcers of the law. We're here to help you. We don't want to see people's homes burglarized. It's a terrible thing when that happens; a family's sense of security and well being is lost. Their cherished possessions are often gone forever or damaged beyond repair. They no longer feel safe in their own homes.

So when we have a B&E call, even though most are false alarms, we are there to protect the sanctity of your home. That's your home and no one else's; we want to make sure it remains that way. We've seen the heartache of families who have lost irreplaceable heirlooms forever in a burglary. We don't want that to happen to you or your neighbors.

That's all Sergeant Crowley wanted to do that day. He wasn't interested in snooping in someone's house or testing the Constitution. The man is an experienced law enforcement professional. To suggest he had nefarious motives demeans the hundreds of thousands of men and women who dedicate their lives to law enforcement every day in keeping you and your family safe.

Okay, I ended up writing a speech. I didn't mean to go on so long so I'll stop there.

Anonymous said...

I mostly said my peace in posts 6 to 8 and remain convinced that that is exactly how it went down.

Couple more comments, though:

1. I agree that a burglar alarm is pretty much automatic PC and automatic exigent circumstances and therefore is a free ticket for the police to come in when it goes off. So I think we have common ground there.

2. No, I am not a law student.

3. I have not had a teevee for many years now. With a couple of minor exceptions, I really haven't had a teevee since about 1998. I do follow court cases and GOOGLE news though.

4. We need to get rid of the exclusionary rule and beef up section 1983. The exclusionary rule rots out repect for and obedience to the Fourth Amendment because it creates tremendous incentives to ignore, lie about and otherwise subvert facts and law relating to 4A. On the other hand, police should be more concerned with being homes where they do not belong, searching innocent people they shouldn't search and stopping innocent people they shouldn't stop. Of course, Jaguar doesn't think about these things under current section 1983 law. Why would he? Out of some kind of abstract respect for the US Constitution? Are you kidding? He will not fall into line with the law unless and until the law provides incentives for him to do so. Anyways, if we get rid of the exclusionary rule, I think that will happen, although I would be a lot more comfortable if we beefed up section 1983 simultaneously with ridding ourselves of the exclusionary rule. Prison or death for the criminals! Jackpots for the innocents! Concern for rights of the innocent by the popos!

Horatio Parker said...

I think Crowley is lying.

I think he initially considered Gates a suspect because he was black, then decided to teach Gates a lesson after Gates defied him.

Crowley said in his arrest report that the 911 caller told him on the scene about two black males with backpacks etc. Except the caller says she didn't say anything to Crowley. I think Crowley had to put something in his report about black men to justify his actions. Otherwise it's a bit hard to see why he would consider a small slight elderly man with credentials a suspect.

That the accounts differ so much doesn't disturb me at all; I can easily see it happening just as Gates said. I've seen before, in high school in the 70s when a cop pulled a carful of us over and arrested one kid because he could see(no way could he have heard) that the kid was saying something disrespectful. His arrest report was a complete fabrication(charges were dropped) from beginning to end. Everybody was white BTW.

Elle said...

Horatio unless you can read minds, you have no idea whether Crowley is lying. You're just guessing. You're accepting everything the caller claimed she said at the scene and accusing Crowley of fabricating his report.

It's a cheap shot accusing Crowley of prejudice. In doing this, you reveal your own prejudice: you're making up your mind based on something that happened to you 30 years ago. That's a textbook example of prejudice: an unfavorable opinion formed beforehand without witnessing the actual event.

Horatio Parker said...

I said "I think".

I am accepting what the 911 caller said. I also think she has the least motivation to lie.

I don't think I'm prejudiced. At first I took Crowley at his word, tho the arrest seemed excessive to me. But as the facts came out, I've changed, in fact my little incident from the past I didn't even recall until yesterday, it really wasn't any big deal. But it happened.

I remind you that none of us was there and everyone is speculating. It seems as if many people are assuming that Gates acted irresponsibly and that's of course possible, but I think it's also helpful to be reminded that the police sometimes abuse their power. A person is not the law. If Crowley hadn't covered up his little exercise he'd be out of a job right now. I think he all the reason in the world to lie, more than Gates.

How do you explain the inconsistency in the arrest report?

Anonymous said...

What is the best way to get to the truth here, Elle?

Elle said...

Cops are trained observers. Untrained civilians may or not may be observant. The woman wasn't terribly observant if she couldn't tell if a man was Hispanic or black.

I believe a cop over a civilian. If he says she said it and she says she didn't, I believe him not her. I imagine she's not intentionally lying, but she could easily be mistaken.

Everything about Crowley's record underscores that he's an exemplary officer. I know nothing about the witness other than she's a responsible citizen who called the police but doesn't seem terribly observant.

Benefit of my doubt goes to him, not her.

Anonymous said...

@"trained observers"

lol. It is like they are magical truthtellers!

PCM said...

Anonymous, I think one problem with your logic and deduction is that it seems to come from a perspective that all cops are jerks and out to screw innocent people.

It's a worldview I can't accept because I know it not to be the case.

Anonymous said...

Because you don't understand the Fourth Amendment (eg, stay out of my house if you lack probable cause), you have no idea what screwing people really means -- how it happens. Violating a person's Fourth Amendment rights IS screwing him.

Now, a police officer may not set out to screw an innocent person in the sense that policeman WANTS the person he is screwing to be guilty. However, when the screwed person turns out to be innocent there is no remorse, and that is where the being a jerk part comes in. That is where it came in with Sgt. Crowley and his dispatcher and the people who helped him make the arrest and the people that told him he did a great job after the fact. Jerks all.

And before you plead it on behalf of the police, I don't consider ignorance of the 4A to be an excuse. Not in your line of work.

PCM said...

There seems to be a difference between what you think the 4th Amendment should be (and you and I might actually agree about that) and what the courts have ruled about the 4th Amendment in practice.

Through prohibition, both of alcohol and of drugs, the 4th Amendment has been slowly but surely chipped away by the courts. I don't like that at all. But that's the way it is.

Anonymous said...

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.

pinhead said...

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.

Sgt. T said...

Pinhead, I'm gonna ask you to articulate the difference between suspicious activity and a crime in progress in this particular case.

Anonymous said...

For Sgt T:


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]


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 said...

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.

PCM said...

Good questions. I'll have to leave it for others to respond for now. Computer running out of juice.

10-8 said...

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 said...

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).

10-8 said...

>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.

pinhead said...

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.

JVN said...

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.

pinhead said...

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.

Jaguar said...

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.

pinhead said...

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.

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.

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??

ckirksey said...

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!!!

10-8 said...

>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:


ckirksey said...

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.

Anonymous said...

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.

Jaguar said...

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.

ckirksey said...

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?

Motorcop said...

'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.

pinhead said...

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.

PCM said...

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.

ckirksey said...

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