Because The 4th Amendment Only Kicks In After The Fact, 'Reasonable Suspicion' Will Always Be Anything But

from the mere-existence-deemed-suspicious-by-law-enforcement-officials dept

A few weeks ago, we wrote about a young man who had $16,000 “forfeited” to DEA agents while riding an Amtrak train — under the legal theory that the money was somehow involved in drug trafficking. (Not the guy carrying it. He was released without being charged — just his money.) Maybe if the man had been more careful not to appear “suspicious,” he and his money might have made it to California intact.

But how can you not look “suspicious” while riding Amtrak?

  • Unusual nervousness of traveler
  • Unusual calmness or straight ahead stare
  • Looking around while making telephone call(s)
  • Position among passengers disembarking (ahead of, or lagging behind passengers)
  • Carrying little or no luggage
  • Purchase of tickets in cash
  • Purchase tickets immediately prior to boarding

Too calm is suspicious. Too nervous is likewise suspicious. The straight ahead stare that’s too suspicious to be deployed is undercut by looking around while using the phone. You can’t win. You may as well turn yourself in (and any cash you’re carrying) before boarding, rather than risk setting off law enforcement’s “sixth sense” that basically turns anyone not in a law enforcement uniform into a potential suspect.

Law enforcement needs “reasonable suspicion” before it can move forward with patdowns, searches, questioning, etc. If it can’t establish that, everything past that point runs the risk of nullifying any evidence obtained or arrests effected. But it’s such a low bar, and it varies from officer to officer, not to mention from locality to locality (and even from agency to agency). Suspicion is hard to articulate, but “reasonable suspicion” is tied to the word “reasonable.” The above list is clearly far from “reasonable.”

Two stories (of many) we’ve covered illustrate the huge gap between what the public views as “reasonable” in terms of suspicion, and what those outside of that realm — namely the courts — find to be “reasonable.”

Asserting your rights isn’t inherently suspicious, but law enforcement has attempted to paint it as such when trying to hold onto a drug possession bust. The government has also tried to make the assertion that password-protected files on a laptop were suspicious enough to prompt further searches, but this reasoning was shot down by the court.

A 2006 National Institute for Justice report detailed some behavior officers find suspicious — as noted during 132 hours of ride-alongs with 182 police officers.

  • All black clothing, regardless of race of person wearing them.
  • Nervousness, refusal to look directly at officers, “fidgeting”
  • Mismatch of ethnicity (whites in a black neighborhood and vice versa)

The vague notions of “reasonable suspicion” have evolved over the past decade as law enforcement agencies increasingly view themselves as integral parts of the War on Terror. Asset forfeiture laws haven’t helped, especially considering assets can be seized based on nothing more than an officer’s “suspicion” the assets may be tied to illegal enterprises. (And, it must be noted, the Fourth Amendment — despite its language about “seizures” has almost no bearing on most asset forfeiture proceedings. And due process — the Sixth Amendment — is often ignored as well.) Hence, this sort of thing, as detailed by the Denver Police Dept.:

Business patrons or individuals who carry large amounts of cash.

That alone is supposed to be “suspicious activity” — something that nicely dovetails into the perverse incentives of asset forfeiture laws. Cash is suspicious and must be seized before it can do further harm, whether or not the person carrying it is ever determined to be involved in criminal activity.

Even worse — following a list of terrorist-related activities to look out for (chemical purchases, questions about building security, etc.) — is the assertion that looking slightly out of place is inherently suspicious.

Anyone attempting to appear ‘normal’ in their behavior, such as portraying themselves as a student or tourist.

Some alleged “terrorists” are nothing more than people who aren’t entirely comfortable in their new environments.

The list of “reasonable” suspicions is neverending. The following are from cases where courts actually stepped up to call officers out on their “reasonable suspicion” claims.

(US vs. Davis, 2013)
There was no reasonable suspicion for defendant’s stop for allegedly being nervous and only allegedly walking away from the officers after making eye contact with one and saying “shit.”

(State vs. Fontaine, Ohio, 2013)
We agree with the trial court that “overly polite” and “heavy breathing” are not sufficient indicators that give rise to a reasonable suspicion of criminal activity.

(State vs. Richardson, 2010)
While Officer Eastwood did observe an “unusual bulge,” this fact standing alone did not provide the independent basis of reasonable suspicion that Baldwin requires, especially in light of Richardson’s immediate compliance and Officer Eastwood’s prior peaceful exchanges with Richardson.

(Schneider vs. State, 2015)
Here, although Officer Wiens testified that he would conduct a stop in the event of a color discrepancy to determine whether the vehicle was stolen, he did not testify that, in his experience, car thieves would change the color of a vehicle after it had been stolen or that a discrepancy in color was indicative of any type of criminal conduct. There was, therefore, no evidence before the circuit court that a color discrepancy was indicative of any criminal activity that would possibly allow otherwise innocent behavior to give rise to a reasonable suspicion of criminal activity.

It is clear, based on the testimony at the suppression hearing, that Officer Wiens was acting on a purely conjectural suspicion that appellant was engaged in illegal activity at the time he initiated the traffic stop.

(Parker vs. Town of Woodworth, 2015)
The issue is simple: Can a police officer conduct an investigatory stop and detain citizens otherwise legally operating motor vehicles on the public highways or private roads in this State solely because past crimes or suspicious activities have occurred in the area where motorists are traveling? The answer is not even close: “No.” There simply is no “check-em-out” exception to this Constitutional prohibition. […] Officer Godwin could articulate nothing to establish a particularized and objective basis for suspecting Parker of criminal activity.

(US v. Thompson , 2015)
The combination of air fresheners, two phones, only one visible bag, referring to military friends to a stranger by rank and last name, clean construction gear, and no hotel reservation do not rise to more “inchoate and unparticularized suspicion or hunch.”

This is a very small sampling. Dozens more can be found here.

Police may find the courts to be too narrow in their definition of “reasonable suspicion.” It’s not that every case where a search is thrown out is linked to a bad cop abusing his or her power. It’s that the courts don’t see the situation the way cops do. This doesn’t make the courts wrong, but it does explain why it’s so pervasive, despite dozens of rulings finding in favor of those illegally searched.

In a case where “reasonable suspicion” was nothing more than a person being in what was termed a “high-crime area” by the police officer, the court had this to say about the law enforcement mindset:

But here, an officer’s confident body language and tone of voice are not enough to prove a high-crime claim. Allowing such a finding solely through unsubstantiated testimony (no matter how confidently stated) would give police the power to transform “any area into a high crime area based on their unadorned personal experiences.” United States v. Montero-Camargo, 208 F.3d 1122, 1143 (9th Cir. 2000) (Kozinski, J., concurring). Yet those experiences can exaggerate the criminality of an area because “[j]ust as a man with a hammer sees every problem as a nail, so a man with a badge may see every corner of his beat as a high crime area.” Id. This is natural–even expected–because police “are trained to detect criminal activity”; they view “the world with suspicious eyes.” Id. But seeing some crime does not automatically make a place a high-crime area.

That’s the disconnect. People who aren’t committing crimes wonder why they’re being hassled by police officers. This is why. “Reasonable suspicion” is subjective and that determination is placed completely in the hands of those who can easily abuse it, and who are in the business of finding and detaining suspicious people. The remedy is the courts, which isn’t much of a remedy at all, when you have to be arrested, held and possibly charged before you can avail yourself of your Fourth Amendment rights.

In a recent Ohio Supreme Court case, this unfortunate limitation is called out. The “reasonable suspicion” prompting the illegal search and arrest was based on little more than the “suspect” not making eye contact with a police officer.

The officer in this case was cruising a Kroger parking lot using the license plate scanner. She approached defendant because he was suspicious, but, on cross, could not identify any potential crime at all. The stop was without reasonable suspicion, and the trial court correctly suppressed the evidence. [Not looking at a police officer was considered suspicious. ¶10. How many cases have said that staring at a police officer is suspicious? Apparently some form of acknowledgment is required in this city.]

The footing for reasonable suspicion constantly shifts. The assertions made in defense of bogus searches and busts are similarly ethereal. The “hunch” always remains, but when pressed for something factual and tangible, there’s nothing there.

The decision quotes a 1948 ruling that clearly defines the Fourth Amendment’s purpose in relation to searches.

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

Which is why the courts must sort this out. We’ve already seen what the Fourth Amendment looks like in the hands of police officers. It’s an obstacle, at best, and it’s more commonly viewed as an enemy of police work rather than a necessary check against abuses of power.

The court also examines the nexus of the Fourth Amendment and the oft-applied “good faith exception.” In this too, the officer is found wanting.

The exclusionary rule has existed for a century to broadly protect our rights to be free from unlawful search and seizure. We find no basis for applying a good-faith exception under these admittedly subjective circumstances. ‘[G]ood faith on the part of the arresting officers is not enough.’ If subjective good faith created an exception to the exclusionary rule, enforcement of the Fourth Amendment for people to be “secure in their persons, houses, papers, and effects,” would be at the discretion of the police.

Furthermore, quoting Justice Robert H. Jackson (who presided over the Nuremberg Trials), the court notes that it is there to provide relief in the case of law enforcement overreach, but its offerings are purely defensive, far from comprehensive and well after the fact :

Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we courts do nothing, and about which we never hear.

In short: the remedy exists, but it can’t prevent bogus arrests and illegal searches. On one hand, you have inherently suspicious cops far too often finding the Fourth Amendment’s protections inferior to their well-honed sixth senses. On the other, you have the victims of these violations attempting to avail themselves of rights that have already been violated. In the middle, you have the courts, which can provide a much more reasonable look at “reasonable suspicion,” but are also prone to extending the protections of immunity and “good faith” exceptions to far too many officers.

Unlike other rights, the government is only too happy to violate first and deal with the fallout later. Government agencies are generally wary of stifling free speech and legislators often hesitant to propose or back gun control laws, but the Fourth Amendment is one the government seldom seems worried about violating. Whatever consequences it faces for these violations are often months removed from the incident and far from guaranteed. Because of that — and the general law enforcement mindset brought on by the realities of the job — “reasonable suspicion” will always be anything but “reasonable.”

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Comments on “Because The 4th Amendment Only Kicks In After The Fact, 'Reasonable Suspicion' Will Always Be Anything But”

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Uriel-238 (profile) says:

Re: Re: "Born with your rights."

This is still a notion that escapes me.

In the natural order, a being only has rights that it can personally defend or is defended by a guardian, so no, as a natal infant, you’re bear food until someone else decides you’re worth saving.

That’s what society is all about, and within society we have some strong instinctive guidelines, specifically reciprocity and prevention of harm (the latter of which drives us to protect our children from hungry bears). But there’s no natural establishment of rights until we start establishing an enshrined level of order (e.g. Two men enter, one man leaves or An eye for an eye)

It’s only when we establish a feudal system in which individuals are given established rights to protection. Even then, the social contract had to reestablish the sovereignty of those rights.

So, yeah, natural, inalienable rights only exist at the grace of a higher order, such as a civilization or culture.

Which is actually a limit to reprisal. The usual punishment for you gouging out my eye is I run you through in a murderous rage.

Uriel-238 (profile) says:

Re: Re: Re:2 Right and wrong.

I’d argue that in the natural order, there is no right or wrong, though there are certainly notions of it amongst animals that herd or travel in packs.

But right and wrong are purely human concepts, and there are few that are agreed upon universally, and there are no universally accepted deontological mores. Even reciprocity and harm / care are qualified by circumstances, and who qualifies, and to what degree.

Only in the latter half of the 20th century (very recently in human history) have we recognized the notion of extending rights to all of humanity (rather than only those in our country / county / town / church).

So to say that there’s no such thing as right and wrong is putting a complicated issue very simply. But no, there really isn’t.

Anonymous Coward says:

Re: Re: Re:2 "Born with your rights."

Just remember that “right” and “wrong” aren’t the same as “truth” and “fiction”.

I’d say there’s such a thing as absolute truth, but right and wrong depend on further constructs, social or otherwise.

eg: travelling the wrong way on a one way street is subjective; from the perspective of the person doing it, everyone else may have it wrong (or the concept itself might be considered wrong). But the damage caused by the impact that resulted from a head-on collision isn’t right or wrong — it’s just the inevitable result.

Similarly, saying that you can defy gravity and float out of your chair and into solar orbit — many would call it wrong, but “wrong” isn’t really the right term to apply to it. The laws of physics must be obeyed, and any actual performance on this claim would depend on some mechanism to perform the act within the limits.

Anonymous Coward says:

Re: Just Searching For Contraband...

Technically the Declaration of Independence is a terrorist document according to the actual law.

So yes, you can literally be arrested for terrorism having these documents on your person. Just take a look at the fully informed Jurist that have been arrested outside of court houses for trying to inform Jury’s of their obligations.

The people running the system are very, so very fundamentally corrupt.

Anonymous Coward says:

Re: Re:

You are forgetting that your bank has to report large cash withdrawals to the Feds. Thanks to “sharing” of “threat” information, the DEA is informed. The probability that you are traveling with a large sum of cash is therefore already known to them before they find it on that so-called random search.

Anonymous Coward says:

Re: First?

They are happy to violate it, but generally the courts have not failed quite so much when First Amendment challenges are brought. Courts that support the Fourth Amendment at all tend to do so in a manner that is not useful to the average citizen, since the court rarely does more than disqualify the unlawful search. If they go farther, it is usually only to affirm that no other police action should repeat the disputed police action. This is better than deference to the executive, but not by much, because it very slowly builds up a specific list of things the executive should not do, helps only the citizens actively interacting with the police, and benefits only those who have already sustained the burden of going through the court system.

The First Amendment constrains the legislature, and courts that uphold it tend to do so by striking down the offending law. Such an action helps all who would have been harmed by it. Although Congress may turn around and pass a new law just as bad, they may not go to the trouble.

Anonymous Coward says:

while there are security force officers who think more about ripping people off, screwing people for no reason other than they can, this wont stop! it would not, however, in my opinion, got anywhere near as bad as it is if the various judges had stomped on it a lot earlier and a lot harder! when they know that the courts are simply gonna sit back and say to the victims, ‘fuck your luck’, why would they stop? and i suppose there is a Xmas share out, so the more there is in the pot, the greater everyone’s share is!!

David says:

This "reason" is insidious:

Mismatch of ethnicity (whites in a black neighborhood and vice versa)

With that claim for “reasonable suspicion”, officers can enforce segregated neighborhoods by repeatedly hassling people until they rather move elsewhere.

Particularly after officers repeatedly act in “self-defense” in the face of some “suspicious” person making a “suspicious” movement.

That One Guy (profile) says:

Re: This "reason" is insidious:

Yeah, that one struck me as particularly nasty as well. So what, now not being a racist bigot is cause for suspicion? Hanging around with the ‘wrong’ skin tones is now a searchable offense?

Nope, clearly whites are supposed to stay with whites, blacks with blacks, and any ‘mixing’ is suspicious since the only possible reason the two could ever meet was for some criminal activity. /s

Anonymous Coward says:

cultural bias

Many of these “suspicious” behaviors target foreigners particularly hard. For instance, in most cultures throughout the world, it is considered rude and aggressive to stare in someone’s eyes when addressing them, especially superiors or officials — yet in the USA, to not do so is considered a sign of deception or contempt, rather than respect.

And of course people from countries where credit cards are uncommon naturally tend to carry cash and pay with cash.

Foreign governments would be wise to train and drill their people before traveling to the USA about how to dress, act, walk, and talk to avoid being singled out for suspicion, arrest, and robbery-by-cop for the “crime” of just being normal.

Anonymous Coward says:

requiring police officers have a working knowledge of the laws and citizens rights might make all the difference rather the current method in place. Where the police do what they want with next to no oversight when they break the law.

Of course if police are being trained to ignore citizens rights and the laws when they don’t want to follow them. There is a much bigger problem at state.

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