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We Must Fix This Major Glitch in Constitutional Law Immediately

We Must Fix This Major Glitch in Constitutional Law Immediately
Here's a dirty little secret, straight from a former public defender to you: neither prosecutors nor criminal defense attorneys know the definition of an "arrest," and American case law is specifically designed to ensure this ambiguity. So neither a prosecutor nor a defense attorney can tell you definitively when you're under arrest -- say, during a traffic stop -- and therefore can't tell you when during a traffic stop you're free to drive away. They also can't tell you, consequently, when you're entitled to be given your Miranda warnings. And because the point of a Miranda warning, above all else, is to let you know that you don't have to answer a police officer's questions, Americans across the country are dying during traffic stops because their entirely understandable and foreseeable confusion, fear, and sense of being coerced during traffic stops leads predictably to their violent deaths at the hands of the police.

To unpack the above, let's break down how police officers understand -- and are trained to understand -- their authority during a routine traffic stop. For the sake of reaching a general readership, I'm going to omit from this discussion the names of the relevant Supreme Court cases and simply tell you what those cases say, how they contradict one another, and what individual parties to a traffic stop understand the law to be. Again, we'll start with police officers. Police officers are trained, by both police academies and by judges who misunderstand the nation's case law and therefore habitually misapply it in Fourth and Fifth Amendment scenarios, to believe the following: (a) you're not under arrest until an officer has physically restrained you, and in certain instances not until an officer has both physically restrained you and told you you're under arrest; and (b) prior to you being under arrest, an officer can detain you for questioning for as long as they feel like it, provided you've been either (i) stopped for a traffic violation, or (ii) stopped as part of a criminal investigation.

So much for the police. So what does the case law actually say? Well, it says that an "arrest" is any police encounter in which a reasonable person would not have felt free to leave. The "reasonable person" test for arrest applies whether or not a person has been in any way physically restrained, and whether or not a person has been told they're under arrest or even told that they're being investigated for criminal activity.

The law also says that police officers can conduct "investigatory stops" in which they briefly "detain" citizens to confirm or deny a reasonable suspicion that a citizen has, is, or is about to commit a crime.

Perhaps you're already seeing the problem here -- the problem, for instance, that contributed (though certainly was not the exclusive cause of) the recent death of Samuel DuBose. Namely, the problem is this: what happens when a police officer turns a routine traffic stop for a non-criminal traffic violation into a fishing expedition-like "investigatory stop" for suspected criminal activity? This is a particularly relevant question in the case of suspects of color, as in the United States suspects of color are far more likely to be the victims of "pretextual traffic stops" -- that is, traffic stops that are really open-ended (and pre-"reasonable suspicion") criminal investigations into speculative drug, weapon, and driving-related criminal offenses. Because traffic stops for non-criminal traffic violations only occur when a police officer has "probable cause" to believe a traffic violation has occurred, officers feel perfectly entitled to keep stopped drivers roadside for as long as they like -- which in a certain respect makes sense, as the officer wouldn't have pulled a car over for a traffic violation if he didn't expect to be writing a ticket for that violation eventually.

When an officer sees a driver without a front license plate, or changing lanes without signaling, or running a red light, or (based on a radar gun reading) speeding, the officer isn't conducting an "investigatory" stop to confirm or deny his suspicion that the traffic violation occurred; he knows it occurred, because he saw it first-hand. Nothing a driver says to a police officer regarding a front license plate, illegal lane change, missed red light, or excessive speed is going to "deny" that officer's suspicion that a traffic violation occurred. The most that can happen is that the driver will present a justification for their behavior which the officer accepts, thereby leading to a warning rather than a ticket. A classic example is the driver whose car is missing an inspection sticker, but who has written proof that he's scheduled to have his car inspected later that day.

The problem with all this is that any police officer can stop any driver at any time on a traffic violation, precisely because the traffic violation statutes for each state are written so broadly that if an officer follows you long enough, you're certain to commit a traffic violation. Officers know this; they know that whenever they want to stop a car they can either (a) follow it long enough to observe a minor traffic violation (such as failing to come to a complete stop prior to the stop-line at a stop sign), or (b) make up a traffic violation out of thin air, knowing that at any future court hearing it will simply be their word versus the driver's as to whether the traffic violation actually occurred. A police officer will win that credibility battle ten times out of ten, of course, in large part because lower-court judges basically have to believe police officers when they contradict the story of a civilian and there's no other evidence of what happened. These judges have to believe the police officer because the officer likely testifies in their courtroom every day, and if they find the officer to be a non-credible witness that officer can (practically speaking) never testify in that court again. The entire justice system would grind to a halt if something like this happened even twice a year in a given courthouse.

So imagine, now, that you've been stopped for some piddling traffic violation, like Sandra Bland was, or Samuel DuBose was, or any number of persons of color are every day for reasons having nothing to do with the nation's traffic laws. Say the officer has walked up to your car window and, despite already having sufficient basis to issue you a ticket and let you be on your way, decides instead to -- as many officers will, particularly with citizens of color -- question you about an unrelated issue which could, theoretically, lead to an arrest. For instance, let's imagine that a University of Cincinnati police officer who's stopped a man for a missing front license plate decides -- instead of quickly writing the man a ticket for that ridiculously obscure violation -- to question the man about whether his registration is suspended. The latter question is indisputably part of a criminal investigation, as I'm not aware of any state in which driving with a suspended registration is less than a misdemeanor.

The citizen so stopped now finds himself in a conundrum: he can't leave the scene because the officer has refused to issue him a ticket yet for the (pretextual) reason for the stop, but he naturally doesn't want to answer questions on a matter that could, in theory, lead to him being arrested for a crime -- for example, if it happens that he can't provide proof that the car he's driving is registered. But at the same time, even though he's not free to leave and he's definitely being questioned on a potential criminal matter -- not being free to leave and being questioned on a potential criminal matter being the two tests for when Miranda warnings have to, by law, be given -- he's not being told his Miranda rights. The argument prosecutors and law enforcement make in this instance is that, even though a "probable cause" situation exists, no "custodial" arrest is possible (because only a traffic violation is at stake) and therefore the driver is only being "detained" under the lower "reasonable suspicion" standard.

How long can such a "detention" take? Up to twenty minutes, according to the United States Supreme Court. Are you free to leave during a detention? No; in fact, in most states Resisting Detention -- for instance, by walking away from the officer who's questioning you -- is a misdemeanor that will immediately get you put in cuffs. And yet the only thing an investigatory stop requires is your presence; you're not obligated to say anything more than your name to the officer, and, in fact, in those rare cases in which just giving your name could be self-incriminating, you might not even have to give that.

The result, whether it's in the case of Mr. DuBose or any other reasonable person in such circumstances, is that during an obviously pretextual traffic stop you predictably become either terrified, angry, confused, or (more often) a combination of all three. And indeed the police are counting on this. Being stopped by a police officer is scary enough -- particularly for a person of color -- but it's made far worse when three things that aren't supposed to happen simultaneously are in fact happening exactly simultaneously: (1) you're not free to leave, and have no idea when or even if you'll ever be free to end the encounter; (2) you're being questioned about a criminal matter under circumstances in which, should you answer any particular question incorrectly, you might find yourself in police custody and charged with a crime; and (3) you're not being told that you have a right not to answer questions, and in fact the officer (who wrongly believes you're not under arrest until you're actually in handcuffs) is telling you explicitly, or at a minimum forcefully implying, that you're obligated to answer all his queries.

In a situation like this, a reasonable person might get angry at the officer standing beside their car door, as Sandra Bland did. They might, feeling an understandable fear, make a gesture toward trying to end the encounter, as Samuel DuBose did when he put his key in his car's ignition and turned it during his encounter with a University of Cincinnati police officer -- which officer reacted to that attempt to be "free to leave" by shooting Mr. DuBose in the face. Or a suspect who never would have run from a traffic violation might choose to -- having not been placed under arrest for any criminal offense, but nevertheless being questioned in a way that could lead to an arrest eventually -- get out of his car and run away, as Walter Scott did in South Carolina. Scott was shot multiple times -- in the back -- by Officer Michael Slager.

The hash-tag #BlackLivesMatter is a just and vital political tool in the fight against police brutality. The problem is that it reduces to a matter of race a series of legal scenarios that are about race but also -- in addition -- a problem with the Fourth and Fifth Amendments that prosecutors and judges have done nothing whatsoever to remedy since it first became evident in American jurisprudence with the creation of the "investigatory stop" in 1968. While those in law enforcement often distinguish traffic stops from other investigatory stops on the grounds that an individual in a car is more likely to be able to prematurely end a stop against the will of an officer -- specifically, by driving away -- in my own experience even suspects on foot who choose not to answer questions during an investigatory stop, and who walk away once it's clear that the stop isn't bearing any investigatory fruit for the officer, are quickly arrested for Resisting Detention. In essence, whether you're in a car or on foot an officer will believe -- and a court will subsequently validate the belief -- that you can be detained indefinitely until the officer decides that he's done with you. (And if you doubt that twenty minutes is effectively "indefinitely," imagine a police officer standing next to your car yelling at you to answer his questions for a full twenty minutes; re-watch the Sandra Bland video if you can't imagine what even two minutes of such a scenario would sound like.) And since officers are trained to believe that suspects are more likely to confess or otherwise incriminate themselves the longer they're questioned or simply inconvenienced and intimidated, officers usually won't decide they're done with someone until well after they should have "confirmed or denied" any reasonable suspicion they might ever have had. Indeed, while the rule on investigatory stops is that an officer must spend the shortest period of time possible attempting to confirm or deny any suspicion he has, that's a requirement I too rarely saw followed when I was practicing law.

Recently, the New Hampshire Supreme Court decided a case called State v. McKenna, in which police were found to have placed under arrest a man who they were taking a walk with, who they'd never put in handcuffs, and who they'd specifically informed that he wasn't under arrest. Despite the fact that the only "curtailment of movement" involved in the case was an officer telling the suspect that he'd rather stay within sight of his cruiser than take a walk in the woods, the court found that the defendant was under arrest the entire time he was speaking with police. In fact, the court implied that officers should have specifically told the defendant that he was free to terminate the questioning at any time -- in other words, they were obligated to Mirandize him simply because (a) they had probable cause to arrest him on a decade-old molestation charge (which probable cause they didn't tell him they had), (b) they were questioning him about a criminal incident, and (c) a reasonable person wouldn't have felt free to terminate the encounter under the circumstances I've described above.

Let's apply the McKenna standard to Bland and DuBose, then. Both Bland and DuBose knew that the officers they were dealing with had probable cause to issue them a traffic violation, and that they, as civilians, needed to wait around until the violation was written up; both Bland and DuBose knew that their questioning had quickly developed into a criminal investigation (in Bland's case, for an entirely specious claim of Resisting Detention by refusing to exit her vehicle; in DuBose's case, for a potential charge of Driving With a Suspended Registration); and both Bland and DuBose reasonably believed they were not free to terminate the encounter (which belief turned out to be correct in both instances, as both individuals faced severe consequences for their attempts to forestall or block further police questioning).

Americans understandably want to know why so many of their fellow citizens, especially citizens of color, are being killed during police stops. And the answer is that police officers are using pretextual traffic stops to conduct unrelated criminal investigations, and by failing to either (a) Mirandize these suspects at the outset of these investigations (which would be an acknowledgment that the suspect was in custody), or (b) specifically tell suspects that they're not in custody and, therefore, free to end the encounter at any time, they are deliberately creating a "Schrodinger's Cat" scenario regarding the fact of arrest. In short, they're putting every suspect they stop on pretextual grounds in the midst of a constitutional paradox that not even a shrewd attorney could possibly advise them out of.

Imagine that a young black or Latino male (we'll call him "Joe") comes to me to try to figure out his rights during a traffic stop for, say, a missing front license plate. Here's how that conversation might play out:

Joe: Am I under arrest at the moment I'm pulled over?
Me: No.
Joe: So then I'm free to leave the whole time I'm pulled over?
Me: No.
Joe: When am I free to leave?
Me: Well, either when you've received your ticket and been sent on your way, or, if the officer decides to also conduct an investigatory stop, whenever he has "confirmed or denied" his reasonable suspicion that you just have, are, or are about to commit a criminal offense.
Joe: So, besides asking me for my name and license and registration, the officer has to have "reasonable suspicion" to expand the scope of the traffic stop and question me about anything other than the reason for the stop?
Me: Yes.
Joe: Do officers usually wait for reasonable suspicion to begin such questioning?
Me: No.
Joe: Can I ask the officer for the basis of his reasonable suspicion?
Me: Sure. He won't answer, though.
Joe: Can I argue about the basis for the reasonable suspicion?
Me: Sure. And you'll probably be asked out of the vehicle, frisked, detained a much longer period of time, and, if you fail in even a single particular to follow the officer's directions on where you should stand and what you should do with your arms, you'll be arrested for Resisting Detention. If you accidentally make contact with the officer, or if you flinch at all when or if the officer grabs you, you'll likely be charged with Assault on a Police Officer.
Joe: Okay, but do I have to answer the officer's questions while he's trying to "confirm or deny" his sometimes reasonable, sometimes unreasonable suspicions about me and my behavior?
Me: No.
Joe: If I refuse to answer his questions, does the investigation end?
Me: No.
Joe: So by refusing to answer the questions that comprise the officer's "investigatory stop," I'm ensuring that I'm not free to leave for much longer than would otherwise be the case?
Me: Yes.
Joe: But at no point does the officer have to tell me I'm free to leave, or that I'm free not to answer his questions?
Me: No, he only has to do that if you're under arrest.
Joe: And when am I under arrest?
Me: In the view of all police officers and most judges -- but virtually none of the existing case law -- only when you've been placed in handcuffs.
Joe: And when will I be placed in handcuffs?
Me: Whenever something you say in answer to the officer's questioning leads him to have probable cause to arrest you, or whenever you say something that leads the officer to be able to search your car (assuming there's any contraband in the vehicle).
Joe: But I don't have to say anything besides my name, and hand over my license of registration?
Me: Exactly.
Joe: So is the officer required to do anything besides question me to "confirm or deny" his reasonable suspicions, like, say, run a criminal background check on me for warrants, or run my license and license plate number to see if I'm licensed and/or if the car I'm driving is registered, stolen, and so on?
Me: No.
Joe: So he can just stand beside my car, holding his gun, shouting questions at me for twenty minutes until either my ignorance of the law or an entirely understandable fear and confusion causes me to start answering questions I don't have to?
Me: Yes.
You: But why would an officer expand the scope of a traffic stop without having any reasonable suspicion to do so?
Me: To meet arrest quotas set by police administrators at the behest of politicians. No politician ever lost his office by being "tough on crime" -- and being tough on crime usually means arresting more people, not reducing criminal activity. The reason for this is that it's far easier to measure an increase in incarceration than to prove a negative -- and trying to prove that activity which usually happens in private (like drug use or domestic violence) is declining is more or less trying to prove a negative.
Joe: So what you're saying is, I can't do anything to challenge anything the police officer does -- anything whatsoever -- unless and until I've been arrested, possibly held on bail, arraigned, possibly held in jail pre-trial for months, and then placed on trial for a crime, at which point I can testify in my own defense against the officer? But I can only do that if I reject all plea offers and take the chance of getting the maximum jail or prison sentence after trial?
Me: That's right.
Me: And the officer knows all this?
Me: You bet he does.
Joe: And he also knows that if it's just my word versus his at trial, he'll almost always win that battle of witnesses?
Me: No -- not almost always. Always. Unless you make it to a jury trial and have a great attorney. Courts are supposed to weed out potential jurors who favor the word of police officers over civilians, but they're rarely able to do that. And only the strongest attorneys, with the most time for preparation, can reasonably expect to rattle a police officer on the witness stand -- as police officers are professional witnesses trained to get the result they want in court. Most officers have testified hundreds of times before judges and juries; the average defendant hasn't testified in a court of law even once.
Joe: So my only hope is to have someone filming the whole traffic stop, and then, also, to have enough personal wealth to ensure that I can make bail -- so I won't have to sit in jail for thirty to ninety days pre-trial? And then to risk getting the maximum jail or prison sentence by going to trial instead of taking, say, probation or a no-conviction, pre-trial "diversion" program in a plea deal?
Me: That's about the size of it.
Joe: What's the maximum penalty for a misdemeanor like Driving With a Suspended Registration, or Resisting Detention?
Me: In most states, about a year in jail. And you'll quite possibly be housed alongside murderers, rapists, and armed robbers who are awaiting trial, or (for instance) drug dealers, domestic abusers, and burglars who've been sentenced to a lengthy jail sentence rather than prison.
Joe: Oh my God -- this is America?
Me: This is America. Also, I should mention that there's an effort afoot in nearly every state to reduce funding to public defender organizations and raise public defender caseloads substantially. In some states you actually meet your public defender for the first time in court; you wait in a line and are given a couple minutes to chat before the biggest decision of your life has to be made.

This is the system we've created for American citizens who aren't trained in the law and who are every bit as susceptible to fear, anger, and confusion as anyone who isn't regularly stopped by police. It's not the system that the Founders envisioned, and indeed it's not even the system the current case law envisions, as cases like McKenna (and many others) make it clear that if an officer wants to extend the scope of a traffic stop to conduct a criminal investigation, he should be obligated by law -- indeed, arguably he already is -- to tell the suspect that he (the suspect) need not participate in the investigation in any way whatsoever. Indeed, he (the suspect) doesn't have to open his mouth at any point during the stop except to provide a name (as providing a license and registration doesn't require opening one's mouth).

It'd be almost unimaginably easy to create a Fourth and Fifth Amendment regime in the United States in which officers were obligated to immediately ticket drivers for the traffic violations for which they've been pulled over, and to then -- if they plan on either (a) letting the driver try to argue their way out of the ticket, or (b) expanding the scope of the stop to include a possible criminal investigation -- issue a clear warning to the driver to the effect that (a) they need not speak to the officer beyond providing their name, and (b) they are currently being subjected to a brief investigatory stop for [insert the offense being investigated], during which stop they are not actually free to leave.

If the above rule had been in place a few months ago -- and the case law on the books already implies that this rule is, legally, the rule in the United States -- Sandra Bland might still be alive, and Samuel DuBose certainly would be. This proposed system, besides being already de facto mandated by the case law, would disabuse officers of the notion that absolute chaos reigns during every traffic stop -- that is, that there are no rules besides those the officer decides to apply. This sort of uncertainty is bad for police officers and bad for American civilians stopped by the police. Moreover, right now it's both killing innocent people and leading to indictments against police officers who otherwise, with much better training and self-restraint, would still be on the beat and doing their jobs.

NB: What precedes ought not be construed as legal advice. If you require legal counsel regarding a legal matter, please speak to an attorney in your area.

Seth Abramson was a Staff Attorney for the New Hampshire Public Defender between 2001 and 2007, and is presently an Assistant Professor of English at University of New Hampshire. His latest book is Metamericana (BlazeVox, 2015).


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