What We Can Get Away With

Nov. 30, 2011
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.

“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,

“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.

We weave ethics into every subject at our Academies and in-services and wrestle with the muddier, murkier line drawing. And we put the lines that some would draw to the test of our core values.

We teach that law enforcement is the standard bearer for not just what is legal but what is honorable. We should not be conniving ways to meet the letter of the law while evading or diminishing its spirit. We should be above questions of what we can get away with and instead carry a guidon that hails “Intention counts” – because it does.

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About The Author:

Described by Calibre Press as "the indisputable master of enter-train-ment," Val Van Brocklin is an internationally sought speaker, trainer and noted author. She combines a dynamic presentation style with over 10 years experience as a prosecutor where her trial work received national media attention on ABC's Primetime Live, the Discovery Channel's Justice Files, in USA Today, The National Enquirer and REDBOOK. In addition to her personal appearances, she appears on television, radio, and webcasts, in newspapers, journal articles and books. Visit her website: www.valvanbrocklin.com

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