Saturday, June 18, 2005


In the criminal law especially, the playing field should be level. The police should have the same power to investigate the rich, influential and powerful, as the poor, weak and down and out. Then we can feel that justice is being done in that regard and we will have increased confidence in the overall criminal justice system. The result will be better protection of life and property.

Take search and seizure. Which people do we want to the police to search? What vehicles or homes do we want the police to search? Do we want to leave it up to the police as to whom to search and what vehicle or home to search? If so, every man’s privacy is in the hands of every police officer.

If we do not want everyone and every place to be searched, then how do we go about authorizing some people and some places to be searched? Under the Fourth Amendment, and New Mexico’s equivalent, the power of search generally requires probable cause. That is a restriction, placed by the Constitution on the police. A further restriction, is that except in exigent circumstances (no magistrate available, immediate action needed), the police must submit that probable cause to a neutral, independent magistrate, and get permission (a warrant), before the search.

Now let us take the case of the motorist. The vehicle is stopped by the police, lawfully, because of a traffic infraction (speeding, illegal lane change, bald tires, broken tail light, etc.). This type of stop and temporary inconvenience is more likely to occur if the police officer suspects that a search of the driver and vehicle may produce contraband or other evidence of a felony. We want the stop to be made; we want the driver to be arrested if impaired; and we want proper citations to be issued. We want to be assured that the vehicle is registered, that it is insured, and that the driver is licensed. Let us assume that all of that is done. What next?

In the case of this motorist do we want her name to be run through police records so that we can see if she is wanted? That makes sense if we are deciding whether to arrest or cite, because a wanted person is less likely to appear in response to a citation than a person who is not wanted. So far, we have invaded the privacy of the driver and with justifiable cause.

In this motorist case, the police officer has a hunch, an intuition, or a suspicion, that there may be illegal drugs concealed in the car or on the person of the driver. The officer does not have probable cause. What to do? Do we want the officer to ask for permission to make these searches? Remember now that the State Police do it all of the time, and turn up drugs, money, guns, and other contraband.

If the officer does not have an intuition nor suspicion, should he be allowed to ask the driver whether the driver has drugs or firearms in the car, and then perhaps acquire suspicion by reason of the nervous response, and then request permission to search? If we do not want this to happen, we had better speak up, because that is what is happening.

It is not fair to allow the officers to search a car merely because he asks for permission and is given permission. Mere acquiescence to pretended authority is not consent. People do not consent; they acquiesce to pretended authority. The officers pretend they have authority, when they ask to search. The meek consent. They go to prison, or are subjected to a search of their vehicle and effects. Search us all; search none of us; or search only with probable cause and consent, or probable cause and a warrant. The present practice is beneath us. We should not order our officers to do it, and we should not permit our officers to do it.

The answer is to require the officer to submit her facts, by cell phone or radio, to a recording monitored by a magistrate. If the magistrate gives authority (a warrant), let the officer proceed. We have 20-30 magistrates in Bernalillo County, counting the District Judges. When the officer calls for a warrant (permission), she can explain under oath to the magistrate why she should be allowed to invade the privacy of the citizen. We will catch fewer criminals that way, but we will be protecting the constitutional rights of all of us.

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