Wednesday, August 15, 2012

When Is It Suspicious to Invoke Your Rights?

By Sherry F. Colb

On Verdict today, I have a column (part 2 of a 2-part series) continuing my analysis of a pair of New York appellate panels that precipitated great controversy after ruling that police lacked a legitimate basis for performing weapons frisks on suspects who turned out to have weapons concealed on their respective persons.  My column emphasizes the importance of competing perspectives (that of law enforcement versus that of suspects) in understanding the controversy that surrounds federal and New York doctrine regulating on-the-street encounters between police and civilians.

In this post, I want to flag an issue that arose during a discussion at the Practicing Law Institute's 14th Annual Supreme Court Review last week.  During a day of reviewing the Supreme Court's 2011 Term, I participated in a panel in which we discussed the Court's criminal procedure decisions.  In one portion of the discussion, a panelist described a case, Ryburn v. Huff.  In this case, a high school student was rumored to have written a letter threatening to "shoot up" his school.  The principal of the school contacted the police officers who became the defendants in the case and told them about the rumors of the threatening letter, asking the police to investigate further.  Police learned, from interviewing the principal and several of the student's classmates, that the student had been absent for several days and that he had frequently been subject to bullying by his peers.  One of the classmates opined that the student, Vincent Huff, would be capable of carrying out the alleged threat to shoot up the school.

After these interviews, police drove to the Huff residents to talk with Vincent Huff.  The police asked to enter the house, but Vincent's mother refused entry.  Ultimately, the police entered the residence but found nothing and concluded that the rumors about Vincent Huff were false.  The case in the Supreme Court revolved around the question whether police acted unreasonably, in violation of the Fourth Amendment, when they entered the house without either a warrant, exigent circumstances, or probable cause to believe a crime had been committed.  The U.S. Court of Appeals for the Ninth Circuit had ruled that the officers' conduct was unreasonable, and the U.S. Supreme Court reversed.

In the PLI panel discussion, the scholar who summarized the case suggested that the Court's decision was outrageous.  How could a police officer reasonably conclude that a suspect's refusal of consent to a home entry converted what would otherwise have been an unconstitutional entry into a valid one?  If a refusal to consent to an otherwise impermissible search provided the needed grounds for a non-consensual search, then the right against unreasonable searches would be meaningless.  Lacking probable cause, a warrant, or whatever level of suspicion might be necessary to justify a search, police could simply ask for consent and then either (1) receive consent and then lawfully search on the basis of that consent, or (2) receive a refusal to consent and then lawfully search on the basis of the suspicion arising from the refusal to consent.  Heads I win; tails you lose.  Individuals would be safe from unreasonable searches only so long as police failed first to ask for consent (regardless of whether that consent was or was not forthcoming).

When I took a closer look at the case, however, this all became more complicated.  First, the police were suspicious not only because of the mother's refusal to admit them into the house but also in part because a rumor was circulating that he had threatened to shoot up the school, an alleged threat that one of his classmates found credible.  Second, according to the facts found by the district court after a bench trial,  when police expressly asked the mother whether there were weapons in the house, the mother failed to reply and instead suddenly turned around and ran back into the house.  In addition, when police had first arrived and knocked at the door, no one came to the door, even though the family was home.  When police then called the home phone number, no one answered the phone, and it was only when police called the mother's cell phone that she answered but proceeded to hang up on the police officer when he said he would like to speak with her.  She and her son then spontaneously went outside, where they spoke to the police until the mother decided to run into the house.  Under the circumstances, it is much more difficult to say that police clearly violated the Fourth Amendment by entering the house.  Indeed, I am not convinced that police acted unreasonably at all.

The difficulty, though, is that -- putting aside the rumors about Vincent Huff's allegedly threatening letter, neither the boy nor his mother did anything illegal in the presence of the officers or any informant.  The police had not placed the mother under arrest or even ordered her to stay put and answer questions.  If she no longer wanted to answer the officers' questions, she was accordingly entitled to return to her home.  She also had no obligation to say "sure, go ahead," when the police asked for permission to enter the house.  Stated differently, refusing permission to enter and returning to her home were both legal invocations of her constitutionally protected rights -- to liberty, to privacy, and to silence in the face of questions that call for incriminating responses.  How, then, could police premise an invasion of her Fourth Amendment rights on her invocation of those and other constitutional rights?  And if police can do so, then are we not back in the earlier position of saying that people's rights are protected only so long as they have not been asked to forfeit those rights?

My answer is an ambivalent no.  To refuse to waive or otherwise forfeit an existing constitutional right cannot itself justify police infringements upon that right.  On the other hand, behaving suspiciously is not the same thing as behaving criminally, and a person can trigger legitimate police suspicion without violating the law.

What do I mean?  Imagine that you witness the following scenario.  Police approach a teenager, based on an anonymous tip, and ask him whether he is armed.  The teenager responds by yelling "I hate cops!"  The officers repeat their question about whether the teenager is armed.  The teenager says "the Constitution says I have a right to carry a concealed and loaded weapon on my person."  Would you be suspicious of the teenager?  I would, despite the fact that the First Amendment protects his right to think and to say that he hates the police and that he believes that the Constitution protects his right to carry a concealed and loaded firearm.  Saying these things is not and indeed cannot be illegal.

Yet these statements, made in the context of a police inquiry about whether the teenager is armed, provide evidence that he in fact is armed.  To say that his statements evidence criminal activity, then, is not to say that his statements are themselves criminal activity (or even that a law prohibiting his statements would be constitutionally valid).

Return now to the mother and son in front of their home.  Refusing admission to the police is permissible (and cannot provide a basis for entering the home).  A refusal to answer the officers' questions is also permissible.  Running into the house, however, when police ask about weapons -- however lawful that behavior -- gives rise to some level of legitimate suspicion.  When police are in the midst of asking questions, it is customary either to answer those questions or to refuse to answer them and excuse oneself.  It is peculiar -- even though it is legal -- to suddenly race into the house just after being asked whether there are weapons in that house, after rumors that the boy was planning to shoot up the school.

To say that constitutionally protected conduct -- including the exercise of free speech rights and leaving the company of the police when one has been neither stopped nor arrested -- can be suspicious, perhaps ought to leave us feeling somewhat uncomfortable.  People have the right to do various things, but if they exercise those rights in an unusual fashion (or, one might say, in a rude or uncustomary fashion), then they may inadvertently forfeit some of the very rights they were exercising.  If we think about competing perspectives regarding  police-civilian encounters, civilians who are frightened and confused when talking to the police may inadvertently behave in ways that police could -- legitimately -- find frightening and suspicious.  It is difficult to know how to avoid giving rise to suspicion unless one has a script of what the correct, "unfrightening and unsuspicious" manner of invoking one's rights is.  On the other hand, it would be unfair to police to require them to ignore rationally based inferences just because no one has violated the law in their presence.

Unfortunately, I do not have a tidy solution for these difficulties.  My inclination is to encourage police to strive to create more trusting, better relationships between themselves and civilians so that occasions for mis-communication are minimized.  But if police make an effort to interact more regularly with civilians in a particular neighborhood, in an effort to build good relations, there is a substantial risk that the civilians will feel intimidated and believe that they are suspected of wrongdoing and will therefore misunderstand the police officers' effort to befriend them.

In other words, police behavior in approaching an individual may itself provide an evidentiary basis for the individual's concluding that the police wrongly suspect him of violating the law.  For a ready analogy, think of the parent who says "John?" with the intention of asking her son an innocuous question, but John angrily responds "What did I do now?!"  John has perhaps become so accustomed to being addressed by his parents only when under suspicion that he immediately assumes that his mother is accusing him of doing something wrong.

Like any habitually dysfunctional relationship, repairing relations between police and the communities that police serve and protect will take work and effort on all sides, but that work is crucial to healing the fissures between well-meaning people on both sides of the divide.  And importantly, nothing that the Supreme Court says about the Fourth Amendment can alter the need for that work.


Hashim said...

Illinois v Wardlow, 528 U.S. 119, 125 (2000), makes this precise point: refusing to answer questions posed by the police is not itself sufficient to justify a Terry stop, but fleeing from the cops is sufficiently suspicious to justify a Terry stop, even though it may be legal and factually innocent.

Justin said...

It should be more than just make us nervous when combined with the fact that cops, you know, lie. It eviscerates the 4th Amendment entirely. If invoking your constitutional rights in an awkward way is itself sufficient to justify a search or seizure, then not only can the cops pester you regarding those rights until you slip up, but they can also just say your voice cracked, and there's no need for you to slip up. The end result is a level of Orwellian logic I don't think we should be so ready to accept.

Justin said...

As far as Illinois v. Wardlow, I tend to remember being dubious that the decision was correctly decided in law school - after all, Terry stops are nominally designed to protect cops, and cops are not exactly threatened by guns that might be on individuals who are fleeing from cops that aren't chasing them. But even accepting IvW, there's a line-drawing issue; while fleeing from cops at full speed is, from a practical matter, suspicious behavior, merely acting very odd is not. There's no indication from the fact pattern above that is the normative "equivalent" of fleeing; they were just acting very peculiar. Acting peculiar should not, by itself, justify a search - indeed, there might be 1st Amendment concerns as well as 4th Amendment concerns (theoretically) with such an approach.

tjchiang said...

I think you are conflating two rather distinct questions. (1) when is it actually suspicious, in a realistic what-would-real-people-think sense, for someone to invoke a constitutional right, and (2) when is it normatively desirable for the law to deem something suspicious for purposes of the Fourth Amendment.

So in your hypo about the person who says "I hate cops," yes the person is suspicious in a real-world sense. But so too is pretty much every single person who invokes the Fifth Amendment.

The relationship between when something that is real-world suspicious should normatively be deemed to be suspicious for Fourth Amendment purposes is a difficult one. Like you, I have no good answers. But I don't think your hypo about the teenager--which only demonstrates real-world suspiciousness--says much about the normative question.

Sam Rickless said...

I'm a little confused.

1. Searching someone's house is not the same as a Terry stop. Unless one falls under the various exceptions carved by SCOTUS on this issue (exigent circumstances, etc.), a search of a person's home requires a warrant based on probable cause etc.

2. If there was evidence that Mr. Huff was or might be planning a crime (and it seems that there was), then why wasn't this evidence brought to the attention of a magistrate for the purpose of obtaining a warrant? I am assuming that there wasn't sufficient reason to believe that a crime was about to occur. As the officers were on their way to the Huff home, what prevented them from calling a magistrate to get a warrant?

3. SCOTUS decided this case in accordance with the classic exigent circumstances exception to the warrant requirement. As SCOTUS saw it, the circumstances on the ground at the time that Mrs. Huff promptly ended her conversation with the officers and ran back into her house made it reasonable for the officers who were talking with her to think that either they or someone inside the house might be in imminent danger. What circumstances, exactly?

a. Rumors about Vincent Huff's having written a letter about shooting up the school.
b. Reports of Vincent Huff's having been bullied, which fits the stereotype of past school shooters.
c. A report by a Huff acquaintance to the effect that Huff might well shoot up the school.
d. The mother's refusal to answer the front door when officers knocked.
e. The mother's refusal to answer the phone when officers called.
f. The mother's running back into the house after having been asked whether there were weapons in the home.

The question is whether these pieces of evidence in combination are sufficiently suggestive of imminent danger. I would say that given the officers' actions in the circumstances, the answer is NO.

First, if you are worried that you yourself are in imminent danger, do you as an officer simply follow a woman into an unfamiliar house if you think she might have ready access to a weapon? I think not. And yet the officers did not retreat. They walked right in, seemingly not knowing whether they would be shot at as they did so. To me, this suggests that they did not really believe that they were in imminent danger. And this suggests a fortiori that they did not *reasonably* believe that they were in imminent danger. (I am not saying that officers have a duty to retreat. What I am saying is that their actions don't make much sense on the assumption that they really believed that they were facing the real possibility of being shot.)

Second, there wasn't sufficient reason to believe that anyone *in the house* was in imminent danger. The officers had evidence that Vincent Huff might have motive and opportunity to shoot up his school. But when the first officer entered the house right behind Mrs. Huff, Vincent was outside the house, clearly not posing a threat to anyone. The officers had no evidence that *Mrs. Huff* (or anyone else who might be inside the house) would be a threat to anyone. She wasn't rumored to have written any threatening letters, etc. The fact that she ran into her house after having been asked about whether there were weapons in it could just as easily be explained by (i) a desire to stash the weapons so they wouldn't be discovered, (ii) a desire to consult with others in the house about how to answer the question, (iii) a concern to find the weapons herself before the police did and get rid of them.

Ian said...

I think Justin makes a pretty good point. Police already have enough power and courts have been pretty hesitant to call officers on illegal activities, especially "small" matters like testilying.

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