The Warrant Exception: A Fourth Amendment Field Report

Most of my cases involve some kind of search. My clients have had their homes raided by squads of police officers sporting surplus military weaponry. Their underwear drawers, pants pockets, and backpacks have been turned inside out. They have been ordered to sit on curbs in handcuffs beside their cars while their neighbors looked on. In the most extreme cases, the long arm of the law has pulled its nitrile gloves tight across the knuckles in its search for contraband.

Given the invasive nature of these searches, should a police officer be able to carry them out whenever he or she wants? Shouldn’t a neutral, detached member of the judiciary take a look at the officer’s’ reasons for wanting to do these things, consider whether those reasons amount to probable cause and sign a warrant stating that the officer’s behavior will pass Constitutional muster? I would only need two hands to count the number of times my clients have seen a warrant before a search, but I would still have fingers to spare.

And yet as a matter of law, any search without a warrant is presumed to be illegal. This rule, along with the rules requiring Miranda warnings and appointed counsel for the accused, came from a bygone era of Supreme Court jurisprudence. In later years, the Rehnquist Court found many of these rules too protective of the accused. Rather than overturning these rules, the High Court decided to puncture them with exceptions that police can rely on to justify their behavior. In most cases, the police succeed because the “exceptions” cover the vast majority of times my clients have been searched. Searches done with a warrant are now the exception, not the rule.

My client (let’s call him “Client”) lived in a duplex in one of those unincorporated areas between good-sized cities; an older residential neighborhood with too many cars parked in the driveway and no sidewalks. Client shared the duplex with his wife, his brother-in-law and his brother-in-law’s indoor marijuana grow, which he tended with help from a friend who lived elsewhere (let’s call him “Parolee”).

One day, Parolee addressed his finished product to the wrong ZIP code and accidentally mailed a big box of marijuana to the other side of the state. Detectives from far away soon began following my client and his family because they lived at the return address on the package. They engineered a “consensual encounter” with Client and Parolee on the sidewalk in front their home just as they were about to unlock the door and go inside. For 15-20 minutes they peppered Parolee with questions to find out whether he lived in the duplex (if he had lived there, the detectives could have searched without a warrant). Parolee, who had accepted a totally voluntary invitation to sit on the curb between two police cars, continued to insist that he did not live there.

So the cops went with their Plan B; they tracked down Client’s wife in the maternity ward of the nearby hospital, waited until after she had given birth, confronted her as she was learning to nurse her infant, and convinced her to sign their consent form. I will point out here that Client and his wife have very limited English skills; I had never spoken with Client without an interpreter. The officers claimed that all of their interactions with Client and his very new family were consensual, and that Client and his postpartum wife could have ended the encounter at any time.

Now if I pretended to be a member of my local bench, I would say that living at the return address on a big box of pot is probable cause to search Client’s home and sign that warrant. If I were the on-call judge, available 24/7 to sign emergency warrants, I might have even signed it outside of business hours.

So why harass a new mother and her newborn baby instead of simply asking a judge for a warrant? If you have given birth, or have been at a birth, you know what a special and vulnerable time it is for the mother. The miracle of life is exhausting, messy, painful, and overwhelming; between hospital gowns and nursing, it leaves little room for modesty. These detectives had chosen to drive hundreds of miles to interfere with something sacred rather than seek a warrant from a judge.

That’s the part that gets me; they didn’t have to, they chose to. Why?

And if cops can bust in on a woman learning to express colostrum, what can’t they do?

Respectfully Submitted,

Norm DeGuerre

The Thin Blue Curtain

Dozens of cars whooshed over my head every second; I first heard the engine, followed by thunks of axles bumping over seams in the freeway, and then the air as it tried in vain to catch up in their wake. The lamps fifty feet above the cars were the only light sources; only a little of it snuck past the overpass and made the journey down to where I sat, in a police car, beneath the highway. I was left sitting in a memory of light, like the image that remained when you finally turn off an old television that had been on for too long.

This light left too many shadows. The nearby shipping depots and body shops had long since become “mixed use” developments, which meant they were only used for discussion during city council meetings. They loomed like sad bamboo around the Hotel Antillia – squeezing it against the two-lane road that ran along the freeway above.

Officer Timmons turned on the spotlight mounted to the side of his police car as he pulled into the hotel’s horseshoe parking lot and shined it on the single-story rows of hotel rooms ran along either side. Each room had a front door that opened into the attached carport, swallowing the doors and cars underneath in shadow until the spotlight punched through. The spotlight darted from car window, to front door, to the lone window allotted to each room, and then on to the next room.

This was not the first hotel parking lot that we had roamed that evening – we were looking for anyone who had left their room to smoke, or talk to other guests, or sit in their car. Officer Timmons was free to chat with anyone he saw in public, and if that person happened to be high, getting high, holding an open container, or on probation or parole, Officer Timmons would then further intervene into their evening.

“Outstanding.” I heard Officer Timmons as he braked to the right of a red Corolla in one of the hotel’s parking spaces. No need to undo the seatbelt – Officer Timmons had been in and out of his car so often that night he no longer bothered to fasten it. I peered through the passenger window in hopes of seeing what Officer Timmons had spotted in a matter of split-seconds; a woman’s head shot up from the driver’s lap just as the driver tried to sink lower behind the back of his seat.

“Let me guess, it’s not what it looks like,” Officer Timmons said as the driver blinked in confusion at the officer’s flashlight. Both he and his passenger handed over their IDs without being asked. Officer Timmons read each card as the driver spilled the entire saga of how he and his lady friend wound up in that parking lot.

I rolled down my window just a bit, and pressed my ear to the crack.

“You see, officer, I know that this isn’t the right place to be doing this, but she’s married with two kids, and my room wasn’t free because me and two other guys chipped in to pay the $54 it cost to rent a room and they got back early, and there really wasn’t anywhere we could go, and no one was around, and besides, I have every right to be here because it’s a public parking lot.”

“Yes sir, that’s the problem, you’re doing this in a public parking lot,” Officer Timmons said, the threads of his patience holding steadfast.

Meanwhile, the dispatcher chirped over the car radio and into Officer Timmons’ earpiece. No wants, no warrants, and neither party was on probation.

“Alright, I’m going to be back in a half hour to see if you two are still out here. Take what you’re doing inside, or I’ll take you in,” Officer Timmons warned before returning their IDs. “I can’t have you out here making yourselves targets for whoever might want to jack [rob] you while you two are distracted.” He slid back into the police car and continued his inspection of the Antillia parking lot; the two men who had been chatting across the lot through their respective windows had long since closed their curtains.

My night with the Sequoia Meadow Police Department followed much the same pattern. Officer Timmons had no sergeant or commanding officer dictating where he should patrol, and so he spent the time between calls roaming secluded, poorly lit public spaces. We rolled through the Honduran neighborhood to let the local gangs know that the SMPD was out and about. We shined spotlights into empty parking garages and parks that closed to the public at sunset. We visited the boarded-up meth house across from the union hall, whose tenants had scattered after one of them hanged himself inside. We also found the time to swing by the homes in the hills with three-car garages because, according to Officer Timmons, several of the owners had complained that they don’t “feel safe” without a “visible police presence.”

At around 1:00 a.m., Officer Timmons drove toward the entrance to the SMPD’s parking lot in order to drop me off before his lunch break. On one side were the steel skeletons of new, “affordable” $800,000 2-bedroom condos. On the other side, the gray glass façade of a large investment firm; signs and arrows guided drivers to the designated limousine parking. Officer Timmons wished me a good night and dropped me off at my car. He pulled away and went to grab lunch, which at that time of night was going to come from either a convenience store or a drive-through.

I nearly missed my exit home while driving back from Sequoia Meadow; I had gotten lost in thought. In 7 hours, Officer Timmons would finish his shift and begin his hour-long commute to the home where he and his family could actually afford to live on a police officer’s salary. Officer Timmons will have spent the remainder of his shift continuing to roam the semi-secluded public spaces of the city, looking for people who lack the privacy and/or good sense to indulge their vices indoors. If their crimes are serious enough, Officer Timmons will arrest them; otherwise, he will shoo them away back into the shadows for their own safety. This will also save Officer Timmons from having to drive back to Sequoia Meadow on one of his days off to testify in court.

“The system is broken,” Officer Timmons had told me as we filled his tank with gas at the beginning of our ride-along. I had nodded politely, assuming that his reasons for thinking that would be completely opposed to my own. But as the evening unfurled, I learned that our opinions overlapped to a surprising degree. Jails and prisons take first-offenders and hardens them by subjecting them to an environment of constant fear. The defendants who go in hardened become permanently lost. Those who avoid jail are simply ignored like a cigarette butt on the sidewalk; dopers and hookers are cited, released, rearrested when they fail to come to court, and then re-released, and then they go right back to old habits once they serve their time.

Officer Timmons has to figure out whether the psychotic homeless man is off his meds, on the right meds, or on enough meds and if he guesses incorrectly, the doctors release him to go right back to exposing himself before Officer Timmons’ shift ends. Sometimes, Officer Timmons finds a man leaning against the side of a building, too drunk to stand but awake enough to almost answer his questions. This man would be too drunk to safely book into the jail but unless Officer Timmons can prove the man’s identity, he cannot take him to the “drunk tank” to sober up. The last option is to call for first responders. But then Officer Timmons has to decide how urgent the situation is before calling it in; a “Code 1” (lowest priority) is unlikely to get any response at all, while a “Code 3” was reserved for life threatening emergencies.

These stories came back to me during my drive home. Officer Timmons represents the boundary between the have-nots and have-mores. Sequoia Meadow’s criminal class invited police intervention solely because they lacked the private space to commit their crimes away from prying eyes. In a matter of seconds, Officer Timmons must decide whether he has a legal basis for intruding into someone’s evening. Once he does, he then has to balance what is necessary to keep the city looking safe to the well-heeled residents while rationing the few crumbs-worth of public resources at his disposal. He has only three options to choose from; jailing someone temporarily removes their unsightly activities from public view, but often makes a bad person worse before releasing them back into the world. Calling upon other public resources, such as hospitals or firefighters, cost a tremendous amount of time and money. Sadly, the most efficient solution is to shoo the problem back into the shadows so that the citizens of Sequoia Meadow can tell themselves that it isn’t there. Afterward, Officer Timmons leaves the city to return to where he can actually afford to live.

Making people feel safe without making things better: this is what Officer Timmons meant when he said that the “system is broken.” Despite everything I had seen, I never quite appreciated just how bad things really are.

Respectfully Submitted,

Norm DeGuerre

Murderer’s Privilege (An Attempt at Mostly Fiction)

The heavy steel door latched shut with the tiniest of clicks just before the jail guard walked away. My seat was round and about as large as a personal pizza. My left buttock tingled and then drifted off to sleep.  Across from me sat my client, wrists chained to his sides, feet chained to the floor: standard procedure when visiting a client in the jail’s maximum security wing.

“So I’ve been talking to some of the other guys in here…”

Oh no. My client had been discussing legal strategy in his homicide case with his fellow inmates, several of whom lacked the legal skill to avoid picking up their own homicide cases.

“…and I don’t think I have received enough training on how not to be a killer.”

My client lifted two fingers far enough from the chains on his waist to slide his manila envelope across the table. I skimmed each clipping and set it on the table between us. Inside the envelope,, I found…

…one newspaper clipping about a man in Staten Island who died begging for his life while his killer choked him to death. The killer told the dead man to stop selling drugs on the corner, but the deceased did not stop quickly enough for the killer’s liking. The grand jury decided that the district attorney did not have enough evidence to charge him with anything.

…another newspaper clipping, this one about a man in South Carolina who shot his victim in the back several times as the victim ran away. Strangely, the killer bound his victim post-mortem. The killer’s companion walked up to the body as the killer dropped another weapon on the ground to make it look like self-defense. Both the killer and his buddy wore identically-colored clothing, and the group to which both men belonged had a fearsome reputation for intimidating and brutalizing their community.

…one last newspaper clipping. A man in the midwest fled a gunman on foot. The gunman caught his prey and took him down. The gunman fired his pistol at the deceased as he labored for breath on the ground. Before dying, the victim yelled at the gunman for what he had done. “You fucking ran, shut the fuck up” sneered the gunman’s companion. Another of the gunman’s buddies mocked the victim for his inability to breathe as he lay dying. The shooter later claimed that he had intended to use one of his less lethal weapons and shot the victim by mistake; he stands accused of negligent homicide, and not murder.

…and finally, a computer print-out of a 100-page report, authored by the United States Department of Justice. The DOJ had penned this report in response to another high-profile killing in Missouri. The final section, entitled “Necessary Changes,” had been dogeared by my client. His handwritten notes filled the margins on either side.

I see where he’s going with this. “So if I’m hearing you, you want me to argue that, like the police officers in these news clippings, you simply have not had adequate training on how not to stab your brother-in-law in the chest while arguing on Christmas Eve morning.”

That guy in New York begged for his life on camera. And they say that the cop was right to fear for his life? Why can’t I say the same thing? My brother-in-law said ‘I’m sorry’ to me right before I stuck him. But maybe I was still afraid of him? Was that completely fucking nuts for me to still be afraid of him? The DOJ says I would probably benefit from more training on ‘proper use of force.’ And shit. Most of these guys are never charged with anything. Why do they get to charge me?”

“So how about this: I make a pitch for you to voluntarily wear a body camera on your person for the rest of your life in lieu of a prison sentence. You want me to offer that?”

I don’t know. Should I?”

“Do you think wearing a body camera would help you value human life a little bit more?”

It couldn’t hurt.

“Well, it better. They’re finally charging cops for this in South Carolina, thanks to the fact that most people carry a high-powered camera in their pockets all the time. But maybe with time, your fear of getting caught hurting people will turn into finding genuine reasons to not want to hurt people.”

“Yeah, it couldn’t hurt.”

Barely missing a beat, my client added:

“You know what else I should get? A union representative to protect me from people’s complaints.”

“Well, you already have a representative, and I’m a member of a union. Is that close enough?”

“They also should have set up a citizen’s review board to screen people’s complaints about me.”

“You mean  a jury trial? Because you can have one of those.”

“No, not a trial. The thing before trial where all the complaints get dismissed.”

“You mean a grand jury? They indict everyone unless you are a cop.”

“It’s too bad I’m not a cop, or I wouldn’t be here right now.”

Unfortunately, my client was probably right.


An Afternoon With Judge Goodhair

Seven police officers sat behind me as I questioned one of their colleagues in Judge Goodhair’s courtroom. Witnesses in a case are normally excluded from the courtroom when another witness is testifying, so I knew that these seven other cops were here to get a search warrant signed by Judge Goodhair. In the past, I have seen officers enter Judge Goodhair’s chambers with a thick stack of affidavits and then leave, warrant in hand, in far too little time for him to have read that stack of materials. Word had traveled quickly within the Santa Asphalt police department.

The officer who sat on the witness stand had been called to testify at a motion to suppress evidence for violations of my client’s Fourth Amendment rights. I did my best to piece together the officer’s story. In the early early morning–about 2:00 AM–neighbors reported a drive-by shooting, the target being my client’s home. At 10:30 AM,  the Santa Asphalt Police Department decided to respond in force to this very urgent situation. Out of grave concern for potential gunshot victims, the SAPD ordered my client and his two roommates to walk backwards out of the apartment one-at-a-time, each with their hands on top of their head. Each was then handcuffed and put in the back of separate squad cars. The SAPD’s continued search for gunshot victims took them into the back corner of my client’s sock drawer, where they found 50 pills of MDMA in need of immediate medical assistance.

My opposing counsel was maybe two years out of law school. Every important decision about the case thus far had been made not by him, but by his supervisor in the narcotics unit of the district attorney’s office. He was a nice kid, and I knew that he couldn’t just come out and say that his office needed to keep their conviction rates up in order to continue receiving grants from the United States Department of Justice, and that was why he simply couldn’t let my client do rehab instead of jail time. But he was perfectly pleasant and always memorialized the discovery that he had given me thus far in writing. I played along when he explained that he couldn’t give me what I had asked for in way of plea bargain because it was “too serious a case.”

I’m still not sure if he understood that he was being tasked to defend the SAPD’s behavior as a perfectly reasonable reaction in the context of a possible emergency medical situation.

With a premise so absurd, could the final part of my cross-examination of this officer not be? I resume my questioning:

Q: Officer, you testified that you believed that the clothing in the dresser was men’s clothing, correct?

A: Yes.

Q: And you testified that you believed this based on your “training and experience.”

A: Yes, that’s right.

He just couldn’t help himself.

“Training and experience” is one of the things that an “expert witness” can rely upon to testify to her “expert opinion” and have that opinion weigh as evidence in court. I assume this officer learned that in one of the many trainings the District Attorney’s office gives to local police agencies. From what I can infer from the testimony of 70% of the police officers in my jurisdiction, those trainings teach police to simply sprinkle the phrase “based on my training and experience” over whatever speculative bullshit they feel like spouting in order to turn their guesswork into admissible evidence.

This works most of the time, but not today.

Q: Can you describe for us the training that you had in the police academy on the defining features of men’s clothing.


A: Can you repeat the question?

Time bought for the cop to think of his answer

Q: When did you learn in the police academy how to identify men’s clothing?

Same question, different phrasing; let’s see how quick on his feet this guy is

A: Well, we had many trainings where senior officers would dress in civilian clothes and pose as suspects. They would wear men’s clothes or women’s clothes, depending on whether they were male or female. And so I got to see what clothing would be men’s clothing or women’s clothing.

Q: So these trainings were not actually ABOUT the nuances of gendered clothing items?

A: No.

Q: Was there a test you had to pass at the end of it?

A: No.

Q: Are you a member of any organizations devoted to forensic clothes typing?

A: Uh, no.

Yes, yes I did make this man answer these questions on the record before he was excused from the stand. Tee hee.

I looked up to the bench and I knew I had won–there was no way for Judge Goodhair to rule that the warrantless search of my client’s home was related to a potential medical emergency, not when the responding officer (the men’s clothing expert) responded to my client’s home 8 hours after the shooting, pausing to collect and photograph shell casings along the way to my client’s door. Judge Goodhair was going to have to throw out a whole bunch of hard-earned dope in front of a room full of cops, many of whom were there for his rubber stamp on search warrants of their own.

Judge Goodhair granted my motion and threw out the evidence. I reassured my client that yes, his case was dismissed and no, he would not have to drug test any more. My client was relieved to know it suddenly didn’t matter anymore whether the probation department’s urine tests could detect bath salts. The opposing counsel began to explain to his officer why the evidence had been thrown out. The other officers remained impressively poker-faced. A private defense lawyer sitting in back gave me a thumbs-up. I noted that it was only March, and that I might have just gotten my year’s worth of external validation in one afternoon.

And I remembered that sometimes a court of law can also be a court of justice.

Respectfully Submitted,

Norm DeGuerre 

Criminology 101 – Advanced Theories of Street Crime and Hard Time.

“There was crime, but it sure as Hell wasn’t organized.”

This is a quote my client told me in an interview room at the jail while recounting his growing up as a gang member in an agricultural community about two hours away from my county’s Hall of Justice. Nearly all of the adults in his life had been unemployed and/or addicted to something. He and other kids who roamed the streets–instead of going to school–banded together, usually under the influence of some older brother who had just recently been released from prison. They wore the same colors and got the same tattoos. But this was no paramilitary criminal conspiracy; most of this group’s crimes revolved around drugs and fighting.

This client was baffled that the laws that had been passed to catch sophisticated criminal conspiracies were being used on him. He was accused of helping his codefendant sell $1500’s worth of stolen property to an undercover cop. And by “helped,” he actually sat in the codefendant’s living room drinking 40 ounces of something vile while the codefendant sold stolen property to an undercover cop. But because he and codefendant grew up with each other and had been members of the same “gang,” the district attorney believed that he was somehow furthering a criminal conspiracy merely by his presence, which happened to be on the couch, drinking.

Within days of that fateful bout of day-drinking, my client checked himself into rehab. Weeks after, he began the necessary court proceedings to get visitation rights for his daughter, who prior to that had been on the verge of being placed into foster care. He no longer had to live with his old gangbanger friend or rely on his old gang ties as currency for life favors. And then the district attorney indicted him.

He spoke with pride about the two community college classes that he had passed between bouts of incarceration. He mentioned having a fantasy in which he was able to share his life experience with future law enforcement in a classroom setting. And I had to wonder what that would look like.

Few if any of the professionals working in the field of criminal justice have any personal experience that allows them to relate to, let alone understand the people on its receiving end. Communicating that experience to others is a challenge that I will take up in my next post.

Respectfully submitted,

Norm DeGuerre

Profiles in Happenstance

Chasing Truth, Catching Hell turns one year old today. A surprising amount has happened since then; my cathartic creative writing project is now featured on the ABA Journal’s “blawg” roll and has hundreds (plural!) of readers. An amazing community of bloggers, lawyers, writers, and informed citizens has visited Chasing Truth over the past 12 months.

Many stumble upon Chasing Truth through search engine queries. In furtherance of this blog’s goals of educating and entertaining its readership, I will attempt to answer the questions that many of Chasing Truth’s readers have been trying to answer with the help of the internet.

“How to win a Romero Motion.” This reader is a public defender (or intern) sitting in front of an office computer. His client faces a life sentence under California’s Three Strikes law. In a Romero motion, the public defender will, essentially, beg for mercy in the face of his client’s love of drugs and/or violence. In utter desperation, he has consulted Google for answers. Google doesn’t know how to win a Romero motion. Unfortunately, the only sure way to win a Romero motion is to defy the laws of physics and travel backwards in time to stop your client from having a record. If this is not possible, the public defender will simply have to plumb the depths of his client’s life story, find the shiniest nuggets of redeeming humanity, and convince a judge that the remainder of his client’s human worth is so precious that the drafters of the Three Strikes law would never have wanted the client to serve a life sentence.

In all seriousness, best of luck.

“What happened to Demontes Wright?” This reader is an idealistic young lawyer whose friend has a job in asbestos litigation that allows him to subscribe to HBO. Young Lawyer invites herself over to watch Gideon’s Army, an excellent documentary on public defenders. Gideon’s Army is the story of three intrepid public defenders in the South who war for their clients’ freedom against a drought of resources and a flood of indigent clients. During the climax of the film, public defender Brandy Alexander argues that her client, Demontes Wright, could not have been the man who robbed the liquor store in question. I’m sorry that the plague tornado knocked out the electricity before this reader could see the end, but rest assured that Ms. Alexander won her client’s freedom, despite the ease with which her innocent client could have lost ten years of his life in prison.

Related search: “Travis Williams public defender Georgia.” This reader has the bad luck of being accused of a crime in Georgia, and is desperately hoping that Gideon’s Army super lawyer Travis Williams will be his public defender.

“Are my rights violated if I can’t even go to the bathroom, but they say you’re not even under arrest and police interrogate me without reading me my Miranda rights?” This reader has been questioned by police to the point of physical discomfort. However, in deciding whether his rights have been violated, the question is not whether the reader felt free to leave. The question is whether the reasonable, prudent, Yale-educated Supreme Court justice would have felt free to leave under similar circumstances. If a member of the Ivy League ruling class would feel free to waltz out the door of the police station, this reader should too. If a cop has told this reader that he can’t use the bathroom, he is being detained. If this ever happens to you, stop talking immediately. In all honesty, consider soiling yourself to prove just how trapped you feel.

“Getting help for your client on remand” The good news is that this reader finally got a referral from that business card that he taped above the urinal in the bathroom that adjoins the visitor’s lobby at the local jail. The bad news is that now this client expects his money’s worth. This means that unless the attorney can lower his client’s bail, the client will not be able to make more money to pay the lawyer. This will oblige the lawyer to waive preliminary hearing and then dump his client on the public defender once the case is set for trial.

This reader needs to get his leased Audi out of the nearby parking garage very, very quickly. I know a number of reckless teenage vandals.

“Can a good lawyer get you out of anything?” This reader has hired the lawyer described in the paragraph above. Never underestimate the private bar’s willingness to sell a client an enema of sunshine in lieu of honest legal representation.

“How do you win a Marsden motion?” Unfortunately, I wouldn’t know anything about that. Best of luck to you. Indigent criminal justice reform needs to take place nationwide. People who commit crimes in my county are lucky to have such good representation. But I want everyone in America to have access to the same high quality level of defense. Protecting the rights of our most vulnerable citizens protects the rights of everyone.

“People in jail for drug addictions ‘leave a comment’” County jail is a terrible, smelly, occasionally violent, and perpetually depressing place. Its callow corrections officers are not interested in making any of its tenants into a better person. Maybe this reader needs to write a Yelp review?

“Movies about chasing something and never catching it” Thanks for stumbling upon my blog by accident. I really do appreciate the additional readership. I’m sure that somewhere, out there, is a Zooey Deschanel movie with your name on it.

“Can I add a profile to the Megan’s Law website.” This impish prankster has a great idea for getting his chemistry teacher fired. Unfortunately, these gates of hilarity are blocked by Department of Justice firewalls.

“Crystal meth cannot climax” Not to be an insufferable optimist, but some would say that this is a feature of crystal meth, not a drawback.

“Public defender burnout.” This reader is likely a public defender, and she was probably scheduled to spend a full day cross-examining tearful victims in an all-day preliminary hearing. This reader welcomed the excuse not to check the blinking light on her phone that tells her that she has yet another unhappy call to return. This reader may well be deliberately postponing that life-sentence case that he just cannot bear to try until another attorney takes over his calendar. Or, this reader may have the burden of being someone who works hard without complaining. His public defender’s office may have rewarded this work ethic by giving him some terrible, thankless, high-volume court calendar that the squeakier wheels refuse to do (and somehow get away with doing so).

For what its worth, I’ll bet that this reader is doing a great service to her clients. I will also wager that most of her clients think so too. We love you. Honest. You are why we need student loan forgiveness for government servants. Being able to pay bills every month without excessive anxiety would really help with preventing burnout, would it not?

“Pretenders drink while you’re at it.” This is clearly one of those Zen riddles that one ponders while hoping that his coworkers have not noticed the third vodka soda that he has ordered during the weekly office happy hour. This reader is cheating by searching the internet for answers.

A confession to friends of this blog; I never expected to still be adding to this site one year later. You make me want to keep writing. I reserve the right to broach this blog’s anonymity when I need to plug my first legal thriller; until then, I remain your secret admirer.

Respectfully Submitted,

Norm DeGuerre

Because You’re Next: Why Everyone Needs to Worry About Stop and Frisk

The surest way for those in authority to mask racism is for them to say that they “don’t see race” or that they are “colorblind” to race. To quell any doubts, they find one or two members of the group they are discriminating against who side with them, who they can point to and say, “See? We’re not racist!” This is the form that 21st Century racism takes; those with state power congratulate each other on how forward-thinking they are so that they can disown the actual consequences of their behavior. These consequences include overwhelming racial disparities in our prison population, which are exacerbated by draconian sentencing laws that affect minorities first and foremost, and police interference with civil liberties.

Imagine an African-American kid growing up in south Chicago. Or Los Angeles. Or in any neighborhood that hasn’t benefited from an economic boom since the early 1970’s. Kids growing up in these neighborhoods don’t have to be “jumped” into their local gang; simply living in a given neighborhood causes gangs from other neighborhoods to assume that you’re “cliqued-up.” Soon and sure enough, this kid will start to associate with members of his neighborhood’s gang both for safety and for social reasons. His world is artificially small because he can’t go outside of his neighborhood to make friends. It’s a safety risk. Like many kids with limited prospects for escaping an urban war-zone, he smokes pot to take the edge off. He has also taken to carrying a gun, because everyone else is.

Now, imagine that a police officer sees this kid walking around at night in a “high crime area.” The officer approaches and barks questions at this kid. The kid stops, not knowing what to do. Sure enough, the odor of marijuana makes its way to the officer’s nose. Marijuana is illegal! (The cop isn’t lying when he says he knows that smell; his non-cop friends give a heads-up warning before they light up at parties so he doesn’t jeopardize his drug test.) The officer notices that this kid is dressed in baggy clothing. Regardless of the ubiquity of this fashion choice, the officer grows worried that the kid has a gun in his waistband. The officer stops him, frisks him, and arrests him shortly after finding the gun. This kid is now in line to be punished according to “tough on crime” sentencing laws that get state legislators re-elected without fail. The presiding judge will reassure this kid that he “grew up on the streets” too, and that “there was no excuse” for this kid’s behavior. This hand-washing ritual will take place just before the judge hands down a sentence that will ensure that this kid will spend his 20’s among America’s bloated prison population.

“But Norm,” a reader might say, “clearly the officer was right to search this kid, and this kid is being sentenced just as anyone else would be for the same behavior. Haven’t you heard of Martin Luther King, Jr? Or Barack Obama? There is no ‘racism’ any more. How exactly does ‘race’ factor into that story you just told?”

Here are some places where race intersected with this kid’s life and where our legal system paved them over so that it can continue to appear colorblind:

Historically, marijuana was made illegal specifically because it was more popular among people of color. It was consumed in jazz clubs and similar dens of depravity. Marijuana was made illegal specifically as a means of social control. If you think about the social effects of drugs, marijuana is pretty benign. “Smoking a bowl” doesn’t inspire my clients to violence and mayhem as alcohol, cocaine, or meth often does.

Today, marijuana laws (and many others) are selectively enforced. Officers can’t possibly detain every speeder, red-light runner, loiterer, or weed-smoker. Thus, officers get to pick and choose which neighborhoods are most “deserving” of having these laws enforced. Now, guess which neighborhoods they choose. And in those neighborhoods, guess who they choose to stop.

Let’s discuss that stop. In my story above, the officer covered his tracks by not actually “ordering” the kid to stop or place him under physical restraint. He didn’t have to: the underlying power dynamics of society–as well as the officer’s  visible weapons–told that kid he was not free to go anywhere. The courts, however, are willfully blind to these dynamics. The courts decided long ago that an officer needed no legal excuse to have a “consensual encounter” with a civilian. A “consensual encounter” takes place any time the officer interacts with a civilian without physical restraint or verbal orders to stop. The courts believe that an “objectively reasonable citizen” would understand that they were free to leave or otherwise end the conversation because “reasonable people” are well-informed of their rights and feel empowered to check the authority behind an officer’s badge and gun. I wonder what race these “reasonable people” are.

Now, let’s discuss that frisk. “Stop and frisk” policies have been in the news frequently given the lawsuits in New York City. Although the publicity is new, the law that allows this behavior is not. In 1968, the Supreme Court decided the case of Terry v. Ohio. In that case, the officer decided to frisk three suspects whom he believed were getting ready to rob a store. Since then, an officer may stop and frisk anyone whom he believes to be “armed and dangerous,” so long as that belief is based on specific, articulable facts.

Today, those specific, articulable facts take the form of sweeping generalizations that officers assure us are based on their “training and experience.” This phrase comes from the Evidence Code section stating the sources an expert can use to form their “expert opinion” in court. Today, police are taught to repeat this phrase on the witness stand when they want the court to take their bullshit speculations and generalizations as actual evidence. “Based on my training and experience,” the officer in my story might say, “I know that suspects in this high-crime neighborhood often conceal weapons underneath baggy pants and sweatshirts.” Every officer knows this is the magic phrase which turns every dubious stop and frisk into a legal search-and-seizure.

Don’t bother trying to say that an officer’s “training and experience” are correct simply because they find something illegal during their search. We only see and hear about cases where an arrest is made, i.e. cases where the officer’s guesswork turned out to be right. You’ll never hear about the cases where this officer’s “training and experience” caused him to rummage through some kid’s oversized pants without finding anything.

Which brings me to the punchline of this post; all of these things affect everybody because it creates judicial precedent. When a lawyer fails to convince a judge that the evidence against his client was seized in violation of the Fourth Amendment, the reasoning behind that decision is used to decide other similar situations. This is known as precedent.  It happens when a judge finds no constitutional violation when an officer’s “training and experience” leads him to target kids in certain neighborhoods, or because he expects a “reasonable” person to walk away from a jumpy cop with one hand brandishing a flashlight and the other quivering over his holster. The problem is that when the judge finds no violation of Fourth Amendment rights in a situation like the one I’ve described, a kind of law is created which isn’t limited to kids in hooded sweatshirts. The “colorblinding” of the law makes heavy-handed police tactics immediately applicable to everybody.

In short, when vulnerable members of our community are illegally stopped and searched and when what is found is nevertheless used against them, a precedent is set making it legal to use evidence collected in that manner in court. Effectively, the style of this search becomes law and you, dear reader,  just lost a little bit of your own civil liberties. Courtroom drama doesn’t go into the books as, “A scruffy looking darker-skinned guy was stopped in a really nice part of town because he didn’t look like he ‘belonged’ there and sure enough, the cops found some drugs on him!” The precedent becomes, “A man was strip searched because police thought he looked suspicious.”

I believe this process is quietly setting a legal foundation for a possible police state. Because what is a free society without actual freedom? If we don’t have the freedom to privacy or the freedom to go where we want, then what are we free to do? I don’t want to give the impression that I’m paranoid or that I have an irrational deep-seated fear of government. Quite the opposite: I believe that we are the government and that gives us quite a bit of power. We just need to be aware of our power and that awareness is fostered through education. Hopefully, that awareness leads to participation. A great way to participate in our government is by voting and the more informed you are when you vote, the better for our democracy. I think that participation in government is what differentiates between being overpowered by the government and being empowered by it.

The question I wish more people would ask of themselves is, “How willing am I to be harassed by the police so they can be lazy when they skip any detective work and just detain and search whoever they want?” Remember that it only takes one incident, one “misunderstanding,” one off-day to change your life forever. If you’re not willing to put up with an intrusion of your privacy, then you need to make sure that others aren’t subject to an intrusion of theirs. An invasive search may start with “a scruffy looking [insert preferred racial slur here]” but it sets precedent as “a man.”

And this is why public defenders are so important; by defending the rights of our most vulnerable citizens, we are protecting the rights of everybody.

Respectfully submitted,

Norm DeGuerre

Drive-By Lawyering

Since I started doing juvie, I sometimes find myself rehearsing my legal advice in my car on the way to work. My seven-mile drive gives me precisely the amount of time that I have to advise my clients on important legal issues. It’s easier for my clients to understand me when I am concise and using fewer words is always more difficult than foaming at the mouth with whatever feels good to say. Explaining the pros and cons of various courses of action to boys who often have only a third-grade reading level in such a way that they actually understand complex legal concepts in under twenty minutes cannot be done without practice.

With traffic, my drive to work takes about 18 minutes. A sampling of things that I explained to my client in under 18 minutes today:

1. You tell me that you didn’t know the car was stolen. But the police report says that you confessed, and that he tape-recorded the entire confession. No, I don’t know if I can get you out today. I’m genuinely touched at how much remorse you feel for not being a better father to your daughter, but I have no idea what I can do for you if you don’t tell me which version of your story is true.

2. So I know that you remember me. I got you a “not guilty” on your last case here. You see why I’m really, really unhappy to see you back, right? Yes, you will probably “get out” of juvenile hall faster if you plea guilty today, but that is really not a good reason to plea. Well, you’re right, I can’t stop you from doing it if you want to. You do have the absolute right to decide how you plea. Just remember your rights next time before waiving your right to remain silent and confessing EVERYTHING to the police.

3. I know you didn’t actually steal the car, but your little thuglet friend told you that it was stolen moments after the police pulled him over for running the red light. And when the cop walked to the window, you and the other kid ran. Since you ran in different directions, the cops could not catch either of you. You knowingly, and successfully, helped your friend get away with a crime. That makes you an aidder or abettor to the crime and thus equally guilty. No, “accomplice” is a word that only exists in TV shows. The real term is aidder or abettor. Look, if you finish the probation program, they’ll wipe out your juvenile record anyway.

It should be noted that I had to repeat much of Item 3 to the district attorney. The district attorney was “offended” that my client was pleading guilty in court despite the fact that he denied involvement. Why? Because my kid cares more about getting out of custody as soon as possible than having the “real” story told and so he will say whatever it takes to make that happen? It may be the first time I have ever had to argue my client’s guilt to a DA.  And I don’t need to tell you that took less than 18 minutes.

Respectfully submitted,

Norm DeGuerre

Just Ask if They Have Delivery

A huge portion of my cases begin with a routine traffic stop. The single best thing you can do to avoid police contact is obey every single traffic law.

At least half of what you do in your car is probably illegal. Crack across the windshield? Rosary hanging from your rearview mirror? Those can obstruct your vision in violation of Vehicle Code sections 26710 and 26708 (a) (2), respectively. Did you remember to use your turn signal? Are all of those tiny lights above your rear license plate working? Is your “full and complete” stop close enough to the real thing so as to not get pulled over?

The answers to these questions matter more than you think. In California, many “fine-only” infractions are still “crimes” in the technical sense. It its zeal for 18th-century standards for treating prisoners and the accused, the Supreme Court of the United States has found it reasonable under the Fourth Amendment to arrest, strip-search, and imprison a person so long as there is probable cause to arrest for some sort of state crime, regardless of how “minor” the criminal offense.

And so going 5 miles per hour over the speed limit in a residential zone can provoke a severe–and wholly constitutional–intrusion into your personal freedom. Note that this severe outcome may or may not be likely for you, depending upon your income-level, skin-tone,  general attractiveness, and/or criminal record. However, just because there are disparities in the justice system doesn’t mean you should expect your “desirable qualities” will get you off the hook. Lady Justice isn’t blind but you can’t assume she will close her eyes to your shenanigans just because you smile pretty and talk real good. All of us are only one “misunderstanding” away from a misdemeanor.

I’m not implying you should drive around paranoid. In the vast majority of cases, the officer will do the typical thing and “detain” you for so long as it takes to write you a traffic ticket for something you probably shouldn’t have been doing. But even so, the length of a typical traffic stop is plenty long enough for the officer to notice what other obviously illegal things you–or your passengers–are up to. If my client knew he was one “California stop” away from going off to prison for the rest of his life, I’m sure he would have driven a bit more carefully.

Drive safe.

Respectfully submitted,

Norm DeGuerre