It was a cold Sunday morning in St. Paul back in February of 2005 when I awoke to the pounding on my doors and windows from every side of the duplex. I went to look at my security monitor while my girlfriend answered the door. Deb came back panicking when she said it was the police. The police acted just as cold as the weather when I answered the front door wearing only a blanket and a pair of pants. They accused me of running back into the house, while the other officers kept pounding on my house. I replied that I was making sure it was the police before I opened the door. They asked who I was and what floor I lived.
The police wanted to search for a man related to the upstairs tenants. According to Minnesota law, I knew the police were misrepresenting their purpose for gaining entry into the house. The rule of Hot-pursuit enables the police to use warrantless entry if they were chasing a suspect. I did not hear anyone entering the duplex before the police arrived. I called for the upstairs tenants to come out because they had “guests” at the front door. I kept calling for my tenants and ringing their doorbell to wake them up. The police commenced my Fourth Amendment rights when they waited for me to turn my back so I could close my apartment door.
At that moment, the officers went upstairs and opened the unlocked door to my tenant’s apartment. I believe the police illegally entered the house looking for a suspect that was not there. The police can argue the hallway is a commons area shared by a member of the household and I implied consent to enter. I did not imply consent for the police to enter the house when I stood guarding the door half-naked and freezing for four or five minutes because the police refused to let me shut the door. The consequential legality is that any evidence recovered from the upstairs apartment should be inadmissible in the court of law.
The intrusion angered me although the police arrested the tenants for committing a crime against their lease and state law. By law, the police spotted a large bag of marijuana on the coffee table and “held” the upstairs apartment while they got a search warrant. The police charged the upstairs tenants and confiscated their drugs, paraphernalia, and weapons.
The upstairs tenants plead guilty because their public defender did not want to fight the charges based on the reports given by the police officers. Simply, it is limited economics and time whether the lawyer has to fight for people in low-income brackets. I took this experience to apply my knowledge and wisdom for interpreting the laws and the Fourth Amendment rights erosion, which I gave a copy to the tenants and posted at Aidpage.com.
I tell the story because most people understand only partly their rights within a warrantless search and seizure. The U.S. CONST. Amend. IV, § 6 secures the rights against searches and seizures without a warrant, except on probable cause supported by Oath describing the search. The US Supreme Court expressed a preference for searching under judicial issued warrants. The holding in Katz v. United States, 389 U.S. 347, 357 (1967) states the Constitution requires the deliberate, neutral judgment of an officer interposing on the citizens’ searches conducted without earlier approval by a judge or magistrate, are unreasonable under the Fourth Amendment—subject to a few specifically settled and well-delineated exceptions. The Fourth Amendment does not protect the property of foreign nationals and nonresident aliens.
The theory I shall argue is that some police officers use the Constitutional Fourth Amendment—search and seizure--against people stopped at a traffic stop, or “Terry Stop” in economically strained neighborhoods. According to the St. Paul crime maps, judicial records, and independent profiling studies, the low-income neighborhoods in St. Paul have more arrests. In my observations, people in upper and middle-class neighborhoods do not face the police as often.
I remember the Albert Lea Police often used search and seizures in Terry stops against the poor, which I found some of the St. Paul police practicing when I moved here. According to my class instructor in Critical Issues of Policing, Officer Kris Sturgis said, “about 80% of the time the police do not find any evidence of a crime in Terry stops.” Now, as a paralegal I am hoping to educate people about the police procedures used in traffic stops.
My life mission as a legal student is fighting for justice and civil liberties. I volunteer to help many neighborhood organizations, such as ACORN—Minnesota, Heart of the City, and the St. Paul Police Federation at 2fewcops.com, and the neighborhood watch. The knowledge and experience I bring into this paper might answer why the Fourth Amendment affects the socio-economic strained neighborhoods when the police use traffic stops to solve crimes.
It is difficult to answer the question of why the police use Terry stops. Is it true the police stop people equally? Do the police perform search and seizures against Eastsiders more often than citizens of Highland Park or citizens of St. Anthony Park? What is the police department doing to inhibit the practice of socio-economic profiling? The reader must understand that people take risks when they face the police because they can violate the suspect’s rights. I will show readers what their Fourth Amendment rights are and how to apply it at a Terry stop.
The police respond to service calls among the economic hierarchy with frequent Terry stops. The St. Paul police patrol all of St. Paul, but I chose three distinct neighborhoods that show the disparity of policing associated with graduated income levels-- Eastside, St. Anthony Park, and Highland Park.
The police developed their Terry stop policy when the Supreme Court expanded on the circumstances of reasonable suspicion holds to where people live can color innocent conduct with suspicion. The chances for a Terry stop increases when you are traveling along the socio-economic strained neighborhoods and corridors, such as, University, Arcade, Payne, Minnehaha, and White Bear Avenues. The evidence of crimes and arrests in the 2005 St. Paul crime maps show the Eastside of St. Paul has six times more Schedule I crimes like Homicide, Armed Robbery, Aggravated Assaults, Drugs, Burglary, and Theft. In addition, the police stop people when they fit a suspect’s description near the area of a service call. The frequency of 911 calls in impoverished neighborhoods frustrate police officers trying to be proactive in crime prevention rather than being reactive.
People feel threatened by crime and they report it more often in economically strained neighborhoods because of wealth and extreme poverty living next to each other. I learned from Professor Tom O’Connell in my social studies class about Social Reflective Anxiety, or “keeping up with the Joneses.” Social Reflective Anxiety creates friction among the socio-economic opportunities and life-chances in desperate neighborhoods. Barring basic needs, people want the same material possessions and lifestyle enjoyed by the more fortunate people. Notably, the police frequent areas of businesses, absentee-landlords, commercial rental properties, and illegal immigrants. Having said that, old “beaters” and foot traffic cruising around or cutting through wealthy neighborhoods becomes suspicious to the residents who stereotype the drivers and walkers.
People driving vehicles with many equipment violations will also draw the police officer’s attention, that is, taillight out or a cracked windshield. Often, the police are apt to stop old cars for routine insurance and license checks. Sometimes the police stop an automobile that happens to stereotype the driver’s education and social status. Many poor families do not have the money to maintain their cars, have valid car insurance, or license tabs. The result is a plethora of hardships and lifestyles that exposes the poor to law enforcement more often than people from upper-income levels.
People living in the upper-income neighborhoods do not share the same exposure as the poor for meeting the police. The upper income classes can afford new cars, insurance, and license tabs. In addition, the officer also knows the driver can afford to pay their traffic citation, or hire an attorney. Often, the dominant classes stay close to their homes, businesses, and friends, in which case the luxury car may not raise the officer’s suspicion if there was a crime committed.
However, the Lexis driving around known high crime areas and drug houses at odd hours will provoke a Terry stop. Regardless of whatever transport you are using, each person must be aware of his or her rights if they should meet a police officer on the street.
Rights of a suspect.
Briefly, when a police officer signals you to stop, do so in a well-lit and public area regardless if you have to drive two blocks or more. Do not panic or try to flee. Pull over, relax, take the keys out of the ignition, and keep your hands visible on the steering wheel until the officer becomes comfortable with you. Also, be aware that you do not have to talk with the officer in idle conversation but be polite and respectful. Be also aware that you understand the difference when an officer is giving you an order or when he or she is asking you questions.
Police officers face each Terry stop with their self-preservation first in mind. He or she will watch if you behave irrationally, and appear reaching for a weapon or hiding evidence. Police officers use their trained senses to explore for crimes while they are talking to the driver. Any suspicious conduct inferred by the officer’s senses gives him or her probable cause for a search. The police must tell you what traffic violation or crime you committed.
The police officer cannot touch the suspect now because this would mean “seizure” under the Fourth Amendment, unless the officer asks the driver to step out of the car because he or she suspects a crime in progress and continues in further interrogative questioning. The Fourth Amendment protects you when the police give you an order, but the Fourth Amendment does not protect you if the police ask you questions at the Terry stop. People must remember the police have authority to detain and question you if they suspect a traffic violation or a crime committed.
The officer has the right to ask for your driver’s license, insurance, place of address, automobile registration, and tell you the reason why they stopped you. The police officer can only detain the suspect within a reasonable amount of time required to effect either a citation or remedy the problem in the field—the reasonable standard of law says usually ten to fifteen minutes. The US Supreme Court said the police detainment at a Terry stop could be as long as 30 minutes if there is reasonable grounds to show excessive detainment. You can ask if you are free to go after the officer examines your license and insurance.
However, a police officer can arrest, detain, and search a person in two ways. The first way happens when the police run your name through “warrants and checks.” Any detain order the officer receives motivates him or her to take the individual into custody and search the vehicle.
The second way the officer may try to begin a search is if they sense any recoverable evidence of a criminal act. Probable cause is a reasonable belief of finding seizable items by balancing individual privacy against public policy. The good faith doctrine limits the effects of probable cause.
The “good faith doctrine” excuses police misconduct when they believe the facts are valid in the warrant or there is evidence at the scene that provokes a search of the person and their property. Article I, Section 10, of the Minnesota State Constitution says that personal property is an “effect” and protected by the Fourth Amendment, which police officers cannot use to excuse their Fourth Amendment infringements.
However, there is one exception to the good faith doctrine in Minnesota that people should be aware of is the "inevitable discovery doctrine." Inevitable discovery protects law enforcement from violating the good faith rule if they can show the confiscated evidence would have been found at a later time if they followed the proper procedure.
The Vernado law protects people from the police using Terry stops to interrogate or investigate for crimes. The irony of probable cause within the good faith exception is difficult to prove when the police have 68 different violations they could use to pull you over.
Thus, people might respond to the police officer’s Terry stop irrationally, which will trigger the officer’s suspicion to begin questioning the suspect. People make the common mistake by behaving rudely to the police, talking too much, and giving consent to a search. Often the police catch people with drugs and alcohol in their vehicles after the officer subdues the frantic or hostile person for safety reasons. If the police officer tells you to step out of the car, do so by rolling up the window and locking the door before closing it. Do not feel intimidated if you choose to exercise your rights, and do not argue with the officer.
Regardless of income levels, the Minnesota Supreme Court ruled in Harris, 590 N.W.2d at 98 that a “seizure” happens when a person, under the totality of the circumstances, would have believed that he or she was “neither free to ignore the police questions nor free to end the meeting.” You give up your Fourth Amendment right when you continue to talk with the police or answer their questions.
Consenting to a search.
If the police officer lacks evidence of a crime, he or she might ask you questions or try to gain consent to explore further. It is important that you vocally exert your rights to deny a search of yourself and property. In the court ruling of State v. George, 557 N.W.2d at 580, the absence of any protest does not necessarily mean the individual gave consent to a search voluntarily.
One exception the Supreme Court recognizes to the warrant requirement is the individual consent given to the police officers. Consenting is the product of a person’s exercise of free will and often a common mistake made by citizens. Police rely on the person’s fear and ignorance of their right to deny the search, limit the search area, and withdraw their consent during the search.
I believe some of the people in low- income neighborhoods when they answered that they feel intimidated or threatened by the officer’s presence or tone of voice, which compels the suspect to give consent to a search. Therefore, the police can use aggressive policing as a crime prevention tool in economically strained neighborhoods. In each case, the police might justify their reasonable suspicion to question the suspect and begin a search for any evidence of a crime on or near the suspect.
The officer may then ask for consent to a search if it’s relevant to the Terry stop, and if the driver or a third party agrees, then that person has effectively waived their Fourth Amendment protection provided they did so with a full understanding of the waiver, voluntarily and intelligently without coercion or deception.
Any contraband found gives the officer the right to arrest a suspect or give him or her citations. Police having consent do not need probable cause or articulable suspicion for searching the person or their belongings. Police entering by consent must prove the person consenting controls the property, such as their car or house. The person controlling the property can be anyone sharing the property with you, such as a passenger, roommate, a partner, or neighboring tenants-in-common. Any evidence found after consent is admissible in court.
However, if there is no evidence supporting a crime, then any evidence recovered is inadmissible in consent-to-search cases. A person can mistakenly give consent to a search when the police ignored to follow the laws of criminal and civil procedure. In assessing voluntariness, the Courts look at the totality-of-circumstances surrounding the consent, examining the facts for pressure. The Courts will discount consent as voluntary when the officer asserts his or her official status and the individual yields. The person’s knowledge of the right to refuse consent is nonessential to voluntariness. Therefore, as a Fourth Amendment version of the Miranda warning the police do not tell people about their Fourth Amendment rights to refuse a search.
The Supreme Court ruled that consent by the suspect is an unknowing waiver. The police using noncoercive deceptions to get the suspect’s consent are lawful. Getting consent by deception is a useful law enforcement tool when it becomes impossible to gather facts to prove probable cause. Officers choosing noncoercive deception should document the supporting factual circumstances of consent given, the area searched, and the technique used. Consent gotten by misleading information voids the search and any infringements by police asserting a warrantless authority considers evidence inadmissible. The latter case laws could have saved my tenants if they had money to fight the charges.
However, every law might have some exceptions. Without getting consent, the police can use their physical senses within the circumstances of the “plain view doctrine” as a crime-fighting tool to detect and recover evidence of a crime.
The “Plain view doctrine” rule.
The plain view doctrine allows police officers to seize objects falling within their physical senses, not intuition, when the law allows the officers to position themselves at the scene. For example, a police officer standing on the street who witnesses a crime through an uncovered window is legal. However, a police officer trespassing on private property so he or she could witness a crime through the same window is illegal.
Without the “plain view doctrine” or firsthand knowledge from informers, or another, the police officer is lacking facts for a warrant. Limiting the “plain view doctrine,” the officers must believe that any items they detect are contraband before seizing them. For example, police can seize evidence after they served a search warrant or when they detect contraband in open view. If the officer needs a warrant to search and seize the legitimate observation, it will provide grounds therefore, and known as “freezing the status quo.”
Freezing the status quo happens when the police protect and barricade the property or detain the vehicle to preserve the evidence until they get a legal search warrant. The police can impound the car instead of taking you to jail, which the police department has constitutional immunity for conducting inventory searches because they are preserving impounded property.
The police use developing technology that raises the officer’s senses, which cause protests of unwarranted intrusions by infrared and contraband detection sensors. Some law enforcement agencies are now using the P.A.S. III “Sniffer,” (Passive Alcohol Sensor), which looks like a flashlight, but senses alcohol in the environmental air near the suspect. Therefore, the electronic “Sniffer” detecting alcohol allows the police officer to recover evidence under the “plain view doctrine.” 11
The American Civil Liberties Union protested against the “Sniffer” saying this is an invasion of privacy and against the Fourth Amendment. Protesters say it violates the “plain sight doctrine” because officers are not using their own senses, but an electronic instrument. The fear of detecting windshield fluid and other innocent items containing alcohol will spark a probable cause to a search. The A.C.L.U. reminds us the “sensory impressions” gained by an officer are admissible evidence. However, the ruling in United States v. Kyllo (2001) could overturn the use of the P.A.S. “Sniffer” and other detection instruments. The Court held the use of surveillance or detection equipment against houses and automobiles violates people’s privacy unless the technology is available to the public.12 St. Paul police do not carry the “Sniffer,” but they do have sniffing dogs riding around with the windows open.
The Supreme Court obviously dislikes the exclusionary rule, which releases the guilty rather than convicting an innocent person. The Court fears the Constitution will become a basis of tort liability under 42 U.S.C. § 1983 with matters best left to the states. Thus, illegally recovered evidence is inadmissible in the court of law. People must remember the exclusionary rule under the Fourth Amendment protects individuals against coercive and overzealous practices of law enforcement agencies, especially at traffic stops in Minnesota.
Examining Police Responses to the Fourth Amendment.
I am limited in my research efforts to support my observations because the St. Paul police dislike sharing their dirty laundry with the public. I could spend months researching the police department’s personnel files. Amy Brown from the St. Paul Police Statistics and Analysis Department said the difference between the wealthy and poor neighborhoods is the different priority calls the police receive.
The police admit that some police officers do not live in St. Paul, which may lead to social conflicts because of their cultural unfamiliarity with the citizens. I watched many people standing in traffic court—from all income levels—fighting their citations, in which the lower income people out-number the stereotypical wealthier classes. The disparity of traffic citations given to people astounded me to ask people closer to home what they thought about the police and their behavior.
I interviewed ten people at random by race, economic status, and age at the Eastside American Legion Post 577. The people I chose represented various backgrounds, including a homeless Ojibwa, the white, middle-aged working classes, retirees, and adolescents. The most common complaint is how the police mistreat people by talking down to them, searching for and seizing contraband, and barking out threats and orders. They sense the police are more likely to detain and question a person driving a beat-up car and search him or her and the vehicle without recovering any evidence of a crime. All people interviewed agree the police react to the suspect’s behavior by making an arrest, giving a citation, or releasing the suspect with a warning. Sometimes, the police officer having a bad day might misuse their authority of discretion to inconvenience the driver or walker.
From the interviews, classes, and research there is a measurable belief in the lower-income neighborhoods of St. Paul that police do not give equitable treatment to minorities and teenagers. In my neighborhood, the minorities and teenagers discuss stories about their meetings with the police. The community may be right because the 2003 study conducted by the U of M Institute on Race and Poverty supports the public view that Minnesota police officers detain and search minorities more often than Caucasians. Overall, 24% of discretionary searches of Caucasians produced contraband compared to only 11% of African-Americans and 9% of searches against Latinos.13 The statistics show the people arrested follow this frequency pattern, African-Americans, Latinos, Asians, and Caucasians. The Terry stops also vary among the ethnic races and their treatment in the suburbs and rural areas. The metropolitan counties and its law enforcement administrations changed their policies to wrestle the public views of socio-economic and racial stereotyping. One of the ways to deal with the public opinion of economic stereotyping is to create a data collection file to find the solution to socio-economic profiling.
In 2003, the metro area police departments began a volunteer data collection of traffic stops with 15+ different police departments in Minnesota. Now at each traffic stop in St. Paul, the police must make a written report. Each stop must include a list of information, such as the purpose of the stop, the officer’s badge number, the driver’s ethnicity, age of the driver, if there was a search, and the traffic stop resolution. In time, the collected data might show the “norm” for gauging police stops.
However, three veteran St. Paul police officers interviewed--off the record-- will argue that each income class has a lifestyle pattern that favors a particular crime. Common stereotypes, such as a Harley-Davidson motorcycle rider might have methamphetamines after leaving a bar or riding near a known drug house. Maybe an African-American wearing “gangster” gear might have marijuana and crack cocaine. The Asians might receive traffic tickets based on their racing car stereotypes. Stereotypes do not cause traffic stops or an arrest unless there is unusual behavior suggesting a crime in progress.
Minnesota law forbids police officers to stereotype people. The reality is the police can use policy loopholes to get past any arguments of socio-economic profiling. For example, the police officer could make a Terry stop without noting ethnicity if they radioed in a suspicious vehicle, an illegally parked car, or a suspicious person. It is difficult to know the statistics for sure because some police officers may not follow administration policies, especially the older veteran officers.
The St. Paul police do not share their policy information and cultural practices with the public. For many people, the media portrays the police hiding behind a blue wall of silence. We will know in time if the police purposely use socio-economic stereotyping or if it is because the police often intercept low-income people committing crimes in economic strained neighborhoods. The Social Reflective Anxiety and socio-economic problems in low-income neighborhoods inhibit people’s life-chances and advancement. The result is more police calls serving the impoverished neighborhoods with already strained community services.
Sensibly, people believe the wealthy do commit crimes at an equal pace parallel to the poor, although the wealthy limit their exposure to street policing. The media tells us that Enron and other fraud crimes usually involve people in the upper and middle-income levels. In traffic stops, the public may argue the middle and upper income classes receive more breaks from the police than the low-income class. If not, then the argument could support that upper and middle- income classes have a greater amount of economic and networking resources to fight the police in court.
However, the poor have greater risks for a Terry stop because of their prolonged exposure to the police in public. In addition, the poor lack financial and social support for protecting their rights. Often, their public defenders have ridiculous numbers of cases, which they often choose to make a plea bargain instead of fighting the charges. Lawyers have to fight against police testimony and reports.
The police are human and they do make mistakes. Knowing your rights and the law can improve your chances from getting a ticket or arrested, especially if you live, work, or drive through the socio-economic strained neighborhoods. Low-income neighborhoods often contact the police as a pseudo-social service with calls for emergencies and dispute resolutions. Frustrating police work and its environmental influences cause cynicism in some of the police officers, which often the innocent becomes the focus of investigation.
In conclusion, if you feel that you suffered from injustice at the Terry stop, you can file a police misconduct complaint with the police department and the civilian review board. This latter action will provide the St. Paul police an opportunity to review and improve their workforce policies and training. Consult with an attorney quickly with a copy of your citation and all police reports.
1 Officer Kris Sturgis. Lecture notes. LAWE 330-01, Critical Issues in Policing. Metropolitan State University (Fall 2006).
2 Payton v. New York, 445 U.S. 573, 590 (1980); Steagald v. United States, 451 U.S. 204, 212 (1981); Mincey v. Arizona, 437 U.S. 385 (1978).
3 Minnesota v. Olsen, 110 S. Ct. 1687 (1990).
4 United States v. Knights, 534 U.S. 112 (2001).
5 United States v. Arvizu, 122 S. Ct. 744 (2002).
6 United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984).
7 Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223 (1964).
8 United States v. Matlock, 415 U.S. 164 (1974).
9 Bumper v. North Carolina, 391 U.S. 543 (1968); Johnson v. United States, 333 U.S. 10, 13 (1948).
10 Amos v. United States, 255 U.S. 313 (1921); Johnson, 333 U.S. 10 (1948); Bumper, 391 U.S. 543 (1968).
11 Schneckloth v. Bustamonte, 412 U.S. 218, 231-33 (1973).
12 The distinction that “off-the-wall observations” could be permissible while “through the wall” surveillance could be impermissible would lead to a trap as technology advances. The Court held that any other approach, “[w]ould leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home…where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”
13 Council on Crime and Justice, Institute on Race and Poverty, Minnesota Racial Profiling Study: All Jurisdictions Report in Summary of Findings, Sept. 24, 2003 (U of M, Minneapolis, MN), 1.