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.