What We Can Get Away With

“Ideas are clean. They soar in the serene supernal. I can take them out and look at them, they fit in books, they lead me down that narrow way. And in the morning they are there. Ideas are straight-

But the world is round, and a messy mortal is my friend.

Come walk with me in the mud.....”

~ From Notes to Myself by Hugh Prather ~

Law enforcement ideas like integrity and honor are straight, clean and lofty. But we mere mortals can be messy creatures and the world can have muddy, slippery slopes.

I often think of Prather’s passage when I am preparing to do some ethics training or am asked an ethics question. Three such questions recently made me realize that some police take the view that as long as something isn’t specifically prohibited, go for it. I am of the view that what we can get away with now may bite us in the end and we should assume a different perspective.

The muddy world of law.

As a former state and federal prosecutor and adjunct instructor at a DPS Academy, I teach some of the legal subjects that cops need to know. Most recruits appear eager to know what the law requires and well-intentioned about meeting those requirements.

The first thing I do is disavow recruits of the notion that the law will provide them bright lines for their conduct. Different courts of different jurisdictions disagree on what the law requires of police in the course of protecting and serving us. The highest court in the land – the U.S. Supreme Court – after reading briefs and hearing arguments from some of the best lawyers in the country and having weeks in which their stable of law clerks researches a matter for them and they consult and discuss it amongst themselves may disagree 5:4 on what the law required of you in a situation you may have had only seconds to figure out.

So, we do the best we can staying on top of the controlling case law of our jurisdictions and figuring out how to apply such rulings to new situations. And some in our midst try and figure out what they can get away with.

The first question.

During training at the Academy I had a recruit, who had already been hired and worked a number of months for a police department, ask:

“Would it be okay to Mirandize a suspect, then act like you had to go do something before questioning him and come back 30 minutes later?”

I thought I knew what the young man was getting at but replied with my own question,

“Why would you do that?”

“You know, so maybe he’d forget about his Miranda rights.”

I launched into a tirade of how it’s stunts like that that gave us the exclusionary rule, that makes the public distrust the police and on and on until I sputtered out.

The now cowed and red-faced recruit mumbled,

“I just wondered because I overheard a Sergeant suggest that to an officer and I wasn’t totally comfortable with it.”

[Note to self: Must work on forbearance.] I apologized for my strong reaction and led the class in a lengthy, engaged discussion that addressed the bigger question:

Since when should cops be in the practice of trying to slip their way around a suspect’s Miranda rights?

The second question.

During another Academy session I was instructing recruits on the Fourth Amendment’s prohibition of unreasonable searches and seizures by the government. I explained that if evidence was seized by a citizen who turned it over to us, we could use it, even if we couldn’t have gotten a warrant for it because probable cause was lacking.

A recruit in the class asked,

“What if a citizen wants us to search his neighbor’s house and arrest him for selling drugs and we tell him we don’t have probable cause and he [here the recruit pantomimed a wink and nod] says, no problem, he can get it for us?”

I said I thought the exchanged “wink and nod” between the neighbor and the officer was wrong and would turn the neighbor into a police agent which meant we’d lose the evidence. The recruit then asked,