The Rights of the People (11 page)

“They used to call guys on the other side on cell phones and tell them we’re coming,” Neill remarked.

“Too many people out here in the summertime,” said his driver, Officer Matthew LeFande, who’s a lawyer as well as a cop.

“In wintertime, it’s better ’cause people are in their cars,” Neill added. Searching cars has its own legal rules, but if you can get somebody for a traffic violation, you can gaze into the passenger compartment while checking his license and registration, and if you see anything suspicious “in plain view”—an open drink that could be alcoholic, for example—you might get consent or have probable cause for a full search.

The Power Shift was quick and efficient, focused and fast. Four squad cars careened to a stop beside a black man in a football jersey. Neill frisked him and found nothing. In another courtyard, three men sitting on a stoop were approached and patted down. Nothing. “Stand up, let me check, bro,” Neill said to another three on another stoop. “No guns or drugs?”

The indignant answer came from one: “No, we don’t got no guns or drugs.” He put on a disgusted face at the outrageous suggestion. Neill and a couple of colleagues patted them down, running their hands over
and under their arms, along their sides, squeezing lumps in their pockets, down the inside and outside of their legs. LeFande stood by, cradling a shotgun over an arm, like a prison guard making sure inmates in the chain gang didn’t run off from their highway jobs.

Walking to and from their cars, the cops took little detours to peer into bushes, along walls. “We were told they keep the guns in the alley,” Neill said. “We ain’t never found them.”

Suddenly we spotted a sedan stopped in the middle of the street, a black woman standing nearby. “Baby, got anything in the car?” Neill asked. He and LeFande looked with flashlights through the windows but didn’t search, just checked her license and registration. Blocking traffic is arrogant, a way of stating your status, Neill said as we pulled away. “You can’t do that unless you got a gun in the car.” But the Power Shift almost always let “girls” go without a search; Neill played the odds, and the odds were that the guns were with the men. When we cruised up beside an expensive-looking white sedan, Neill saw that the driver was a woman and moved on.

Neill’s team profiled vehicles as well as people. If they spotted something expensive—a Cadillac, a big SUV—or the opposite, a broken-down old car, they’d try to find some minor violation to excuse a stop: tinted windows, decorative lights, a hanging air freshener blocking vision, all infractions of the D.C. code, designed to give cops maximum latitude to investigate suspicious drivers. In fact, the Power Shift carried a handy tool in the search for guns: a tint meter. When the edge of a car window is inserted into a groove, the meter displays the percentage of light getting through. The law requires at least 70 percent for side windows in the front, 50 percent in the back.
¹²

Next came a demonstration of how the Power Shift stopped vehicles in these poor, black neighborhoods—nothing as tame as approaching from behind with flashing lights and a siren. LeFande followed a white Cadillac as it turned a corner and slowed at the next intersection. Then he cut shorty, hitting the gas, wheeling around in front, and blocking the vehicle. All the while, Neill was chattering on his handheld radio, instructing his squad on how to converge on the Cadillac.

Inside, a black man sat smoking a cigarillo and trying to look casual. Neill leaned through the driver’s window, chatted him up while looking around the passenger compartment for anything “in plain view.” Six patrol cars pulled up one by one to fill the block, but the driver seemed to stay cool.

LeFande, standing aside with me, offered a running commentary. Neill was hovering to restrict the driver’s movement, he explained, and other officers needed to stay out of the “kill zone,” where a bullet could reach them should the driver pull a gun. It’s best to put a vehicle, preferably the engine block, between you and the subject. Notice, LeFande said, how the spotlights and headlights from behind are designed to reflect off his rearview mirror into his face to place him under stress and destroy his concentration. “You see,” LeFande said, “he’s trying to find his documents, but he can’t see. He’s under stress.”

And in this atmosphere a driver is supposed to make an uncoerced, voluntary decision on waiving his Fourth Amendment rights. Having created stress, Neill tried to read the level of nervousness and make his judgments accordingly. When he asked for consent to search the white Cadillac, he told me later, the driver came back sharply: “You got probable cause?”

“I said, ‘I don’t have probable cause. I’m asking your permission,’ ” Neill reported.

“I don’t give it,” the driver replied, according to Neill. So Neill tried to soften him up. He got talking with him about his Cadillac, what year it was, how he had maintained it so well, while another officer took the man’s license back to a patrol car equipped with a computer system called WALES, the Washington Area Law Enforcement System, which taps into a criminal database to check for outstanding warrants. The driver came up clean, so Neill let him go with a cheery farewell and a “Have a good evening.” He didn’t think he missed anything by not searching. “He was too calm. He wasn’t nervous.”

How the most upstanding citizen, blinded by spotlights and surrounded by cops, could seem anything but nervous was a mystery to me, but Neill was sure he could tell. “If I ask him the questions, ‘Are you carrying any guns or drugs?’ and he immediately breaks into a sweat, that’s a clear indication that he has a weapon and he may get to that weapon, and what you want to do is—you’re allowed to protect yourself,” Neill said. Indeed, the line of cases from
Terry
is predicated on a safety concern: that an officer should not have to endanger himself by refraining from a search if he believes the subject is armed.

“We take it instinctively,” Neill said. “You’re in a situation, you can kind of get that hair or chill coming up your back. Kind of like, your caution is aroused for whatever reason. And so it’s hard to explain that situation in paperwork. And then come to a jury and also explain the same thing?” He
shrugged at the impossibility of conveying the nuances of a policeman’s labors to a layman. “While people may want you to do your job, they may not necessarily want to know
how
you do your job.”

Some judges think Neill’s telltale signs of gun possession are enough for reasonable suspicion, others do not. Those keen to expand police power may credit a cop’s perception of someone’s jitters. But the opposite view was taken by the federal appeals court in the D.C. Circuit, which ruled in 2007 that suspecting a person of carrying a gun “must be based upon something more than his mere nervousness. A person stopped by the police is entitled to be nervous without thereby suggesting he is armed and dangerous or, indeed, has anything to hide,” the court said. “Were nervous behavior alone enough to justify the search of a vehicle, the distinction between a stop and a search would lose all practical significance, as the stop would routinely—perhaps invariably—be followed by a search.”
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Cops are nervous, too, since 109 of the 578 officers murdered nationwide from 1999 through 2009 were killed during traffic stops.
¹⁴
The police, and even some of their targets, tend to see a search as defusing danger. “The frisk doesn’t just protect the officers,” Neill said one day. “It also protects the person you’re friskin’ because you eliminate the possibility that they may have a weapon so you can relax a little bit more. You know, it’s for their protection and our protection, ’cause we don’t want to be standing there talking to an armed suspect and have to worry about gettin’ shot or havin’ to shoot somebody. You don’t want to—you never want to have to shoot anybody. But sometimes you have to.” Neill had done it twice, once wounding a fleeing man who raised a gun, once killing an unarmed man high on PCP who tried to carjack Neill’s vehicle. So, the frisk had become standard operating procedure.

Patting down people in such circumstances gave Justice Antonin Scalia constitutional misgivings, suggesting that had he been on the Court when
Terry
was decided in 1968, he might have authorized the stop but not the frisk before a full arrest. “I frankly doubt,” he wrote in 1993, “whether the fiercely proud men who adopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity.”
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Although the indignity of searches wasn’t mentioned by Scalia in 2008, when he wrote a landmark opinion on the Second Amendment right to keep guns at home, the ruling—if gradually expanded through litigation—could eventually reduce or eliminate such confrontations with the police on the street, while raising the dangers from firearms.

It was the Supreme Court’s first comprehensive decision on the scope of the Second Amendment. The justices in
District of Columbia v. Heller
found narrowly, five to four, that the framers meant the right as an individual one, not restricted to members of state militias, as the minority believed. The Second Amendment was poorly written: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Parrying each other with intricate grammatical and historical arguments, the justices on both sides left a good deal open to further challenge. At first, the Court ruled only that people in a federal jurisdiction had the right to functioning guns in their own homes. Two years later, the same five-to-four majority applied the Second Amendment to state and local governments. The rulings left intact Washington, D.C.’s and other jurisdictions’ laws against carrying firearms on the street. “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment,” Scalia wrote in
Heller
, “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” This language was repeated in the 2010 opinion, indicating how far states could go in limiting gun possession.
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The District of Columbia complied with the
Heller
decision by enacting a strict licensing law for guns at home. Firearms in the street remained illegal, and defense attorneys discerned no shift in the gun arrests being prosecuted. Nor did the police change the tactics they had used before the Court’s ruling, during my nights with the Power Shift.

The political spectrum gets scrambled out on the street. Liberals who favor strict gun control oppose the intrusive searches, which erode the Fourth Amendment but facilitate police in finding guns. Conservatives who oppose gun control favor more police power to search, which helps them find guns. You might say that the rights under the Second and Fourth Amendments rise and fall together.

A radio call came about an SUV in the left lane behind us. LeFande slowed down and stopped in front of the vehicle, which was trapped by another patrol car behind. The black driver was told to get out, and he was frisked. “What are you patting me down for?” he protested.

“That’s routine for us, dude,” said a black cop. “You got a car with
tinted windows.” The meter showed only 17 percent of the light getting through.

“You want to search the car?” asked the driver, spitting it out as a challenge and a curse. Neill said OK, was joined by two or three officers in the search, and found nothing. The driver looked bitterly victorious, part of a school of black men, frequently hassled by the police, who offer the search as a means of defiance to prove the cops wrong, to show them up as stupid or ineffective. Sometimes, people would lash the officers with the consent as if it were a righteous demand: “Search the car!”

LeFande pulled up beside a red sedan. “That’s a girl,” Neill said dismissively, and we moved on. What drew them to check the car? It came out of a high crime area and didn’t make a full stop, Neill explained.

He then got out and approached two black men, in their twenties, wearing long white shirts. They pulled up their shirts before the cops even asked, and then submitted to pat-downs.

The next target was a black Mustang with tinted windows. A young black man was ordered out from behind the wheel and was patted down while he kept explaining, “I live right here.” The tint meter showed only 16 percent, and Neill asked permission to search. “There ain’t nothin’ in there, man,” said the driver. “Let’s just get it done,” said Neill. They did and found nothing. They are careful to say they want to “search,” not “check,” to be sure the consent is clear and legal.

“We’ve got a guy walking to the front of the building,” Neill said into his radio. The jump-outs surrounded him, put his hands up against an iron fence, frisked him, and found nothing. Through the darkness I could not see any reasonable suspicion. As an officer swept the ground with the beam of his flashlight, however, he discovered a black plastic bag of weed packaged in tiny ziplock bags. The officers made no arrest; there was no proof connecting the man to the marijuana, and besides, the Power Shift was looking for guns.

A lone man sat behind the wheel of a parked car. “Any drugs or guns in the car?” Neill asked affably. “How was your day?” They got him out, searched him, and seated him on the ground. LeFande had him stretch his legs out straight so he couldn’t run, at least not without sending an obvious warning by pulling up his knees before jumping to his feet. The officers searched his car (if he gave consent, I didn’t hear it) and found no weapons, but a sack full of packing materials presumably used for ten-dollar bags of crack—not enough for an arrest.

Down the block, another driver, alone in a parked car, got Neill’s attention.
“Any guns or drugs in the car tonight?” Neill asked in a bantering tone. LeFande had the driver sit on the curb behind the car while the officers searched the trunk, which had only a few jackets and a toolbox. Once, Neill recalled, he’d looked in a trunk and found a safe.