What We Can Get Away With

Just because something may not be specifically prohibited by law, doesn’t mean it won’t come back to bite us. Val Van Brocklin shares three examples from the front lines and offers a new way of thinking.

“But how would anyone find out? The neighbor wants the drug dealer gone. He won’t say anything. And if the cop doesn’t, who’s to know?”

When I’d calmed down [see note to self above], I talked about how police officers are protectors and defenders of the Constitution as much as they are enforcers of statutory law. If officers saw the Constitution as something that got in the way of them doing their job, they were in the wrong line of work.

The exclusionary rule.

The exclusionary provides that evidence seized illegally (in violation of the Constitution) by the police cannot be used in criminal prosecutions. The rule is not expressly in the Constitution.

We didn’t always have an exclusionary rule. Before 1961, when the Supreme Court held in Mapp v. Ohio that the rule was binding on the states, the system trusted other deterrents for such police misconduct – like job discipline. The Supreme Court decided that wasn’t working.

We ended up with the exclusionary rule because enough cops got away with what they could that the Supreme Court decided the rule was needed to deter them.

The third question.

Just this month, the Supreme Court listened to arguments in Jones v. U.S. about whether police can place a GPS tracking device on a person’s car without a warrant. The case raises interesting and important constitutional law questions in the face of advancing technology that may be redefining our notion of “reasonable expectation of privacy.” But I don’t see the case as police trying to get away with something.

Back in 1983, the Supreme Court in U.S. v. Knotts held that,

“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

The Knotts Court decided that police could track an individual by using a “beeper” hidden inside a portable container.

I don’t think it was unreasonable to apply the Knotts decision to a GPS tracking device on a suspected cocaine dealer’s vehicle – unless and until the Court decides otherwise.

It was the pendency of the case before the Supreme Court that raised an ethical question in one law enforcement agent’s mind. He waited until the end of a training I did this summer and we were alone to approach me.

He advised that his agency had been using GPS tracking devices. Once the Jones case got accepted by the Supreme Court, some agents and supervisors argued over whether they had to include the fact that a GPS device had been used in their case reports. Those who didn’t want to include that fact argued it wasn’t an illegal means when they used the device so they didn’t have to specify how they got the information. They wouldn’t lie and say they hadn’t used the device, but they didn’t see why they had to volunteer that information.

I said I thought the argument begged the bigger question of why some agents wanted to omit the fact of the GPS device from their report. The agent concluded it was so it would make it harder for defense attorneys to attack cases in which a GPS device had been used in the event the Supreme Court ruled against the devices’ use without a warrant.

I have a real problem with that kind of thinking. Reasonable minds can disagree about the application of the Knotts ruling to a more technologically advanced device. But leaving stuff out of a report in the hopes that will make it harder for a defense attorney to adjudicate a ruling by the Supreme Court is not what we stand for.

What we do stand for.

The three questions have something in common. They raise scenarios of conniving and ask if they’re illegal. Conniving means “to cooperate secretly; conspire; to avoid noticing something that one is expected to oppose or condemn; give aid to wrongdoing by forbearing to act or speak.”

Conniving may not be illegal but it is certainly beneath us. We’re defenders and protectors not just of people but of the Constitution and the rule of law – not just the letter of the law, but its spirit.    

So what do we do? We ask the tough questions. I now ask these three questions and more like them in my training on legal topics.

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