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Commentaryby Todd H. Oppenheim8:56 amApr 25, 20150

Policing with impunity: How judges let dubious police tactics flourish

OPINION: A public defender argues that tolerance by the judicial system of trumped-up searches by police is a big part of the “culture of impunity” exposed in the Freddie Gray case

Above: “Hands up, don’t shoot,” protesters chant earlier this week outside the Western Police District.

The death of Freddie Gray has highlighted the questionable tactics routinely used by the Baltimore City Police Department.

But so far the discussion has not extended to how our judiciary perpetuates police misconduct. It is time to examine that problem squarely.

When police officers testify in court about encounters with citizens, district and circuit court judges almost always believe their stories, not those of defendants. Police can get away with filing false reports, tampering with evidence, committing perjury and using excessive force because most judges don’t stand in their way.

In my 10 years as a public defender handling thousands of criminal cases, I can count on one hand the number of times a judge actually reprimanded an officer for illegal actions. It’s been so long since this happened that I can’t remember the month or even year.

Most challenges to illegal police actions in criminal cases are made by defense attorneys through pretrial hearings called suppression motions.

These are “mini-trials” with witnesses and are decided by a judge. Defendants try to keep out evidence (statements or tangible things) obtained illegally by police. The Fourth Amendment of the Constitution prohibits unreasonable searches and seizures. In a suppression hearing, the judge must apply Fourth Amendment case law to the facts of the police encounter and decide whether the officer’s actions violated a defendant’s rights.

Most of these hearings boil down to whether the judge believes the police.

Smelling Unburned Marijuana a Block Away

The vast majority of these challenges involve warrantless searches and seizures – like the “stop” of Freddie Gray and his arrest for having a knife.

The State has the burden of proving to the court that evidence was legally obtained. Most problematic to defense attorneys and civil rights advocates are stops of people on the street. The Baltimore Police Department says an officer knows by sight – through characteristics of movement in their waistband area – whether they are carrying a gun, as opposed to a cell phone or just adjusting their pants.

This uncanny ability by police is known as the “appearance of an armed person,” and it is used by the State as justification for the stop and search of a citizen.

Another favorite tactic is to stop and search based on “the smell of unburned marijuana.” Last month, in a case I defended, the police successfully argued that they smelled a bag of unburned marijuana, tucked away inside another bag, from a block away!

Then there’s the “high-drug area” justification.

Police explain that, factored into their consideration for a stop, is the location of the stop. Fourth Amendment case law does allow police to consider location in their decision to make a stop, but I’ve yet to hear of an area of Baltimore which isn’t considered a high-drug area by police.

The biggest myth of all is the “consent search.” Cops simply tell the judge that the defendant agreed to a body search, even though nearly all of the clients I’ve represented in such cases deny giving such consent.

Validating Bad Policing

Because judges know that suppressing the evidence from an illegal search is usually fatal to the prosecution, they are reluctant to suppress guns, drugs or other items seized illegally. Thus, through sheer naivete (most judges live far away from the neighborhoods where police are doing most of their seizing) or an unwillingness to hobble a prosecution, judges buy into the cops’ stories. They end up validating bad policing.

Even when a judge grants a motion and finds police behavior illegal, nothing happens to the officers. Their pay isn’t docked. They don’t have to answer to a supervisor. Internal police reviews are a joke, and civilian review boards lack the teeth to impact anything. When has a police officer ever been prosecuted for perjury? The cops are back on the streets, making arrests, without missing a stride.

Gradually, false statements in court or in arrest reports can lead to the use of excessive force during a stop. A code of silence and culture of impunity has been established. An attitude of invincibility is formed in the minds of some police officers.

“The police report narrating Freddie Gray’s arrest is riddled with falsities and omissions – just the kind so often tolerated by the courts.”

Freddie Gray’s death appears to be a good example of how routine forms of police misconduct can be linked to overt brutality.

Let’s analyze Officer Garrett Miller’s role in the incident. The 26-year-old officer, with three years on the force, wrote the police report narrating Gray’s arrest that’s riddled with falsities and omissions – just the kind so often tolerated by the courts.

Officer Miller used just six sentences to recount the details of Gray’s alleged crime. He says Gray “fled unprovoked upon noticing police presence” that led to “a brief foot chase.”

The Supreme Court says officers may consider flight as a factor in making a stop. But flight is just a part of the whole picture. Pursuing a suspect during an ongoing crime is one thing, but that was not occurring here. Doesn’t what happened to Freddie Gray speak to the reason why a young black man might flee the police?

The report is silent as to how Gray was physically stopped from fleeing. Officer Miller instead justifies the stop because he “noticed a knife clipped to the inside of his front right pants pocket.”

Thus, Miller saw the clip of the knife, not the knife itself, since the knife was in a pocket. Miller’s excuse of seeing the clip of a knife, the type of which he did not know, is not a legally sufficient basis for a stop.

“In hindsight, what aspect of public safety was served by arresting this young man? He was not hurting anyone. Now his life is wasted, and police-community relations in Baltimore have descended to potentially disastrous low levels.”

Miller’s biggest misstep is his flat-out lie that Gray was “arrested without force or incident.” The fleeing qualifies as an “incident.” More importantly, a cell phone video of the police kneeling over a prone, screaming man, then dragging his limp body to a transport wagon is the very essence of an “incident,” if not “force.”

Let’s just say that the six Western District officers had nothing to do with Gray’s obvious injuries while being stopped. Officer Miller still should have reported that something was amiss before placing Gray in the transport vehicle. The officer’s omissions of such key details speak louder than the report itself.

Had Freddie Gray not been injured, prosecutors would likely have dismissed his charge because of its pettiness and the blatant illegalities.

In hindsight, what aspect of public safety was served by arresting this young man? He was not hurting anyone. Now his life is wasted, and police-community relations in Baltimore have descended to potentially disastrous low levels.

Who are the “Rotten Apples”?

Law enforcement proponents would undoubtedly argue that there are always a few rotten apples that need to be tossed out of Baltimore’s and other police departments.

However, we need to redefine the word “rotten.” Sure, officers submitting false reports and using unreasonable force are bad, but so are the complacent cops and feckless supervisors who don’t speak out. They stand by their brethren no matter the evil.

As details of Freddie Gray’s case emerge, it’s become apparent that the State should bring serious charges against the “Western 6.” But even if the State does file charges, we must not be lulled by one fix – and accept as reasonable and tolerable the daily occurrence of illegal stops and searches on Baltimore streets.

Only through strong pressure from judges and prosecutors can we start to change the pervasive culture of police impunity.

Todd H. Oppenheim is a felony trial attorney in the Office of the Public Defender, with 10 years of experience representing indigent clients before the District Court and Circuit Court of Baltimore City.

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