July, 2010 – Surviving the Biased Policing Investigation

Official word is that the biased-policing sustained complaint convictions are still at zero despite the new emphasis on enforcement, investigation and adjudication changes described in the Warning Bells article in May (available at www.warningbells.com, if you missed it). However, the unofficial word is that many officers are stumbling around in the dark trying to answer questions regarding the legality of their actions during suspect/violator stops that ended up being the subject of biased-policing personnel complaints. Although an officer’s “gut feelings” that a stop should be performed are usually valid, if those feelings are not later translated by officers into an articulably legal reasonable cause, problems develop. Non-officers do not understand gut feelings. If you as the stopping officer cannot give a legal reason, there are those in the Department and Police Commission who will assign you one. And it won’t be one that you yourself would choose. Insufficient reasonable cause to some equals a racial-profile stop.

Be Proactive

On the other hand, sometimes there will be a shootout no matter what you do. That is where the vest comes in. Stopping the administrative bullet requires proper answers to the questions we know will be coming at you. You put on your vest before you ever make a stop; do the same here. Before you take action, be able to answer the questions likely to be fired at you. That is being proactive.
The Bullets Most biased-policing investigations will follow a logical chronology based on one or more of the typical actions taken by an officer on the street. Officers stop someone; they get them out of their vehicle; they handcuff them; they search them; they search the vehicle; they ticket, release or book the suspect. The unhappy suspect beefs the officer and away we go! What the suspect usually fails to realize is that officers get to legally do all those things! What the officer sometimes fails to realize is that the reasons for doing all those things have to be articulated! So, before you take the action, think of the potential bullets that could be coming at you and have the answer beforehand.

The Stop

 If it is a detention, you must have a reasonable suspicion that criminal activity has taken place or is about to take place, and that your suspect is connected to it.
Finally, you can make an arrest only if there is probable cause to believe that a person of ordinary care and prudence would entertain an honest and strong suspicion that the suspect is guilty of a crime. Expect detailed “why” questions.

Ordering Out of Vehicle

 

The Patdown

The patdown is limited to the external clothing only. Of course, if you feel something that you reasonably believe is a weapon or contraband you can go into the pocket to extract it. On the other hand, a valid arrest will justify a search of the clothing prior to transportation.

Handcuffing

The training bulletin says: “The principal reason for handcuffing an arrestee is to maintain control of the individual and to minimize the possibility of a situation escalating to a point that would necessitate using a higher level of force or restraint. The decision to use restraining procedures and devices depends on common sense and good judgment. While felony arrestees shall normally be handcuffed, the restraining of misdemeanants is discretionary.”
Be prepared to explain exactly why you believed the suspect was a potential threat to yourself or others, or how you believed it would prevent a situation from escalating or why the suspect was an escape risk prior to deciding to place the suspect in handcuffs.

 Length of Detention

Expect these bullets: How long was the suspect detained? Why did it take that long? Was this suspect detained longer than other suspects that you stopped? If so, why?
The vest: Detentions can be as long as it takes to satisfy the investigative purpose, but you must use the least intrusive means reasonably available to verify or dispel the suspicion. Always be moving towards satisfying the need for the information that is required to accomplish your purpose for making the stop. When you reach that point, release or arrest the suspect promptly.

Searching the Vehicle

Expect these bullets: What was your legal justification for searching the vehicle? What were you looking for? What areas of the vehicle did you search?
The vest: You can search the car within the wingspan of a suspect whom you believe may arm himself or destroy evidence. Once the suspect is outside the vehicle, you cannot search the vehicle without specific probable cause to believe that there is evidence inside the vehicle. In other words, if you have stopped someone for running a stop sign, there is probably no “running stop sign” evidence that can be recovered from the vehicle.
The probable cause to search and the evidence that you are looking for must be something that you can articulate.

Conclusion

Understand that Internal Affairs has been directed not to accept what they consider to be conclusionary words such as “officer safety,” “high-crime area,” “uncooperative” and “consensual stop” without requiring specific details from the officer as to what observations and facts justify using those terms. Be prepared.
The key is to articulate your reasons in your mind before you engage in the activity. Your enforcement decisions are more likely to be correct and more likely to satisfy the questions that may be headed your way. If you cannot articulate your reasons in your head before taking the enforcement action, don’t do it. The career you save may be your own.
Be legally careful out there.