Court Tells Cop That A Person Invoking Their Rights Isn't Suspicious Behavior
from the your-rights-will-be-respected-at-the-discretion-of-the-government-apparently dept
To some cops, there's nothing more inherently-suspicious than the invocation of rights. It appears they believe only guilty people do this. The innocent have no need for rights because if they have nothing to hide then they have nothing to fear.
It takes a court to remind officers that rights are rights everyone has, whether or not they're guilty of anything. This case deals with an officer who treated someone's invocation of his rights as the Constitutional approval he needed to search him. He was wrong. (via FourthAmendment.com)
It all started with a traffic stop that really wasn't a traffic stop. Two officers staking out a "high-crime area" decided to follow a van that drove by them. After discovering the plate on the van actually belonged to a Chevy Silverado, the officers decided to initiate a stop. But it was too late. The van had already reached its destination and was parked in a driveway. The officers pulled up behind it and parked, exiting their car to speak to the driver. By the time they did this, the passenger, Antonio Arrington, had already exited the vehicle and headed towards the house.
While passengers can be questioned and searched in vehicles during traffic stops, Arrington was no longer in the van when the cops pulled up behind the vehicle to perform their "stop." Arrington argued the officers had no reasonable suspicion to detain him and question him -- acts that led to the discovery of drugs and a weapon.
Arrington is right, the court says [PDF]:
The Court agrees and makes two critical findings: (1) by the time Fryt initiated the traffic stop, Arrington was no longer a passenger in the van, was on private property doing nothing suspicious, and should never have been subject to an investigation in connection with the traffic stop; and (2) even if Arrington was still a passenger when the traffic stop was initiated, Norris admitted the only focus of his investigation was to investigate Arrington for other criminal activity. For this, he did not have the reasonable, articulable suspicion necessary for a continued investigatory detention.
The court says the traffic stop (such as it were) was justified. And that could have encompassed Arrington if he had still been in the vehicle. But the Supreme Court's Rodriguez decision doesn't just affect drivers. It also affects passengers. The speedy, but unrelated, criminal investigation is still a violation of rights, even if did not "unreasonably" prolong the stop. It's the expansion that's the problem.
In sharp contrast to Stepp, this Court knows exactly what Norris – the backup officer – was doing: he admittedly did not ask any questions about the traffic investigation. While not prolonged by the addition of time, the original traffic investigation was certainly unreasonably expanded. Rodriguez cautions that the reasonableness of the stop depends on what the police officer in fact does. Rodriguez, 575 U.S. at 357 (citing Knowles, 525 U.S. at 115-17). Norris – in fact – engaged in an investigation unrelated to the traffic stop.
Officer Norris tried to argue he did have reasonable suspicion to detain Arrington.
In concluding that Arrington was engaged in criminal activity, Norris testified that he relied upon only three things: (1) Arrington attempted to divert attention from himself by speaking loudly; (2) Arrington would not tell Norris what was in his pockets; and (3) Norris noticed an “irregular bulge” in Arrington’s pocket.
But the first of those three things was Arrington loudly telling the officer to leave him alone because he (correctly) knew his rights.
Officer Norris did not testify that Arrington became noticeably more nervous as time progressed. In fact, Arrington’s agitation with officers seemed to result from his repeated requests that they terminate his encounter when he informed them that he understood his legal rights.
That's not acceptable, says the court.
Just as numerous courts have stated nervousness cannot be a reliable indicator of criminal activity, loudly asserting one’s right to terminate an encounter with officers does not provide reasonable suspicion for continued investigation of suspected criminal activity.
And, in a but-for-video twist, Norris' own body camera made it clear the officer's sworn assertions about Arrington's behavior during the stop were untrue.
While Officer Norris testified that Arrington failed to comply with his commands, body camera video indicates otherwise. Arrington adhered to officers’ requests: (1) for his name; (2) for his relation to the property owner; (3) to see items in his pocket; and (4) to lift up his sweatshirt so officers could see that he did not have a weapon concealed in his waistband. This sequence of events substantially discounts the assertion that Arrington failed to follow basic commands or attempted to divert Norris’ attention from his pockets. Accordingly, the Court gives little weight to this in the reasonable suspicion calculus.
Everything seized during this stop is now gone, as if it had never been discovered. Considering this end result, the officer would have been better off listening to Arrington and deciding not to violate the rights he correctly invoked. Reasonable suspicion only exists when it's reasonable, and here it was anything but.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: 4th amendment, antonio arrington, law enforcement, police, rights, suspicious behavior, traffic stop
Reader Comments
Subscribe: RSS
View by: Time | Thread
A bit confused...
Why did they decide to go to the traffic stop route rather than just inquiring why the van had plates on it that were not for the vehicle at the house?
Surely that would be more more suspicion?
Just curious...
[ link to this | view in thread ]
Re: A bit confused...
Because they have gotten used to using a traffic stop as the pretext to carry out a search for money, guns and drugs.
[ link to this | view in thread ]
Sooooo
Does that not mean according to cops, when they distract and stonewall, they have something to hide? And by their own bill of rights, by invoking them, the say they did something wrong?
[ link to this | view in thread ]
“But your honor, the suspect was breathing, which is something that based on my experience in law enforcement I know that criminals do.”
[ link to this | view in thread ]
And now that police department has an expanded Brady list.
[ link to this | view in thread ]
Re:
I'll believe a given district has a Brady list that isn't the empty set when I see compelling evidence to support that.
In a sick twist, for the world we currently inhabit, public knowledge of officers lying to a court doesn't actually constitute 'compelling evidence' (I did say 'sick' at the beginning)
[ link to this | view in thread ]
attempted to divert attention from himself by speaking loudly
Wait, WHAT??????
Divert.
Attention .
FROM.
Himself.
By Speaking.
LOUDLY???????????????????
https://www.youtube.com/watch?v=EZSx3zNZOaU
[ link to this | view in thread ]
Re: A bit confused...
That's what the traffic stop was -- for invalid/mismatched plates. But that issue only creates reasonable suspicion for the driver, not the passenger. The rest of the article explains that if Arrington, the passenger, had still been in the vehicle, he could have been part of the traffic stop.
[ link to this | view in thread ]
Re: Re: A bit confused...
Let's see... "Failure to read the article"...
Oh! Bingo! Thanks, man. Haven't won Stupid Comment Bingo in a while now.
[ link to this | view in thread ]
Re: attempted to divert attention from himself by speaking loudl
Works every time.
[ link to this | view in thread ]
Re: attempted to divert attention from himself by speaking loudl
“...I am not someone to trifle with..”
[ link to this | view in thread ]
Re: attempted to divert attention from himself by speaking loudl
In the little world apparently only inhabited by people such as the officer in question, this makes perfect sense.
You would think that at some point in time, the minimum criteria of becoming an officer of the law should include both a higher-than-average IQ and a somewhat decent grasp of both fundamental rights and basic police procedure.
Is it somehow standard in the US to hire police officers from the pool of people who were considered underqualified for unskilled labor jobs?
[ link to this | view in thread ]
Re:
Along with expanded Miranda rights...
You have the right to be guilty, until proven innocent in a court of law. Anything you say proves you are guilty.
[ link to this | view in thread ]
Re: Re: attempted to divert attention from himself by speaking l
Sadly, yes.
Many years ago I worked in Montgomery, AL. Shortly after arriving, I heard an ad on the radio for new police recruits - the requirements were - "19 with a GED"
[ link to this | view in thread ]
But just to be clear, is a cop invoking a person's rights still considered suspicious behavior?
[ link to this | view in thread ]
Re: Re:
Anything you say, or don't say. Anything you do, or don't do. Any way you look, or don't look. As we've seen here numerous times, cops can use ANYTHING as an excuse, be it the existence or non-existence of that anything.
[ link to this | view in thread ]
Re: Re: A bit confused...
Not just a search, but a seizure of.
[ link to this | view in thread ]
Re:
"Don't hold your breath, officer."
[ link to this | view in thread ]
Re: Re: attempted to divert attention from himself by speaking l
"These are not the drugs you are looking for...."
[ link to this | view in thread ]
And the second was him asserting his 4th-amendment right to privacy (and 1st-amendment right to remain silent about the contents of his pockets).
[ link to this | view in thread ]
Should? Yes. Is or will be any time soon? Quite the opposite.
You would think that at some point in time, the minimum criteria of becoming an officer of the law should include both a higher-than-average IQ and a somewhat decent grasp of both fundamental rights and basic police procedure.
Not with the current system I wouldn't, given that between QI and 'good faith exceptions' there is a very real benefit for police to be(or at least act) as dumb as possible while still being able to drive a car and harass people.
When knowing the rights of the public makes it less easy for you to violate them the smart thing is to be/play dumb, and for those employing you to hire accordingly.
[ link to this | view in thread ]
Re: Re: attempted to divert attention from himself by speaking l
Yes. The courts agree.
[ link to this | view in thread ]
Re: Re: A bit confused...
You're missing the point. There was no traffic stop. The car was parked on private property "Arrington's". The police cannot summarily detain and search you on your own property. That's why Arrington got his appeal granted.
[ link to this | view in thread ]
Sometimes cops have good reason to be frustrated.
[ link to this | view in thread ]
Re:
I think it’s more of a Fifth Amendment issue than a First Amendment issue.
[ link to this | view in thread ]
Cop violates someone's right in defiance of established law.
Person appeals whatever charge is leveled against them.
Court agrees and throws out the charges.
Rinse and repeat ad infinitum.
[ link to this | view in thread ]
The innocent have no need for rights because if they have nothing to hide then they have nothing to fear
Courts can indict a ham sandwich and have a 90% conviction rate regardless of evidence. And the police will lie and fabricate evidence as necessary.
Then there's the whole asset forfeiture thing, where police are incentivized to pull people over just to rob them, or find an excuse to beat them down, or gun them down when they try to flee the beating.
These are problems nationwide.
So, innocents have everything to fear regardless if they have anything (of value) to hide.
[ link to this | view in thread ]
Re: Re: attempted to divert attention from himself by speaking l
Yes, yes, absolutely. People with thinking skills and education get the sideways look when applying for police jobs. Even those with criminology degrees and intern time. If that doesn't filter one out, the obvious-in-15-minutes systemic racism and other bullshit will, if one isn't down with shady behavior and violating the Constitution.
[ link to this | view in thread ]
Re:
This however was not one of them, as they quite rightly got slapped down and any frustration on their part was well earned.
[ link to this | view in thread ]
Re:
Give the criminal back his illegal weapon!
[ link to this | view in thread ]
Re: Re:
Oh yeah, we misplaced your drugs.
[ link to this | view in thread ]
People with thinking skills...
People with thinking skills and education get the sideways look when applying for police jobs.
Well, that entirely ruins the stereotype of the bespectacled brainy detective who sees all the crime scene details and notices inconsistencies in witness testimonies. He also has never discharged his gun once in the line of duty, and knows everything about anyone just by looking them once over for clues. Also he takes off his glasses as he makes bad punny one-liners.
This was one of the careers I considered once upon a time. More knowledgeable friends advised me I totally wouldn't fit into precinct culture.
[ link to this | view in thread ]
Re: Re: Re: attempted to divert attention from himself by speaki
"Many years ago I worked in Montgomery, AL. Shortly after arriving, I heard an ad on the radio for new police recruits - the requirements were - "19 with a GED""
So...the guy who might normally look for a steady job flipping burgers at the local macdonald's is instead given a gun and a badge, then trusted to uphold a law he knows as much about as what he's managed to read in high school and assimilated from TV shows? You have got to be joking...
Here in Sweden "becoming a law enforcement officer" has a minimum requirement of 2.5 years worth of education and training, including a six month practical internship - similar in most of the rest of europe.
And to think there have been americans wondering why I didn't take my degree and job experience overseas. What the actual fsck...
[ link to this | view in thread ]
Re: Re: Re: attempted to divert attention from himself by speaki
Well, the officer in that link had a 125 IQ which basically puts him in the top 5%, according to the mensa statistics.
There's nothing new about employers discarding applicants based on the idea that the applicant is of a far higher standard than is required for the job.
What actually scares me about that link is that it demonstrates that the police is somehow expected not to be too smart, and are using that as, apparently, a mainline criteria.
I'm used to the idea that in order to be become an agent of the nation entrusted with enforcing the violence monopoly the most crucial aspect should be the psych evaluation and a lower treshold on how dumb you're allowed to be. This, apparently, does not appear to be the general rule in US states...
[ link to this | view in thread ]
Re:
"But just to be clear, is a cop invoking a person's rights still considered suspicious behavior?"
Suspicious? No.
Let us all know when it happens though, because we'll need to get on the horn with the vatican for authenticating the miracle.
[ link to this | view in thread ]
Re:
"Sometimes cops have good reason to be frustrated."
"Being dumb enough to screw up your own job" doesn't count as a "good" reason.
It's not rocket science. As a police officer you are trusted to use the violence monopoly to uphold the law of the land, as a result of which you are under severe restrictions as to HOW you are to enforce the law of the land.
To help you out you've got something called "process" meant to guarantee that you stay within the boundaries of those restrictions.
When you manage to somehow fuck that process up the end result is that you did not do your job and now no one's happy with you.
I don't see what the cops have to be frustrated about here. In the private sector the only place where it's ever ok to make whoppers is if you're flipping burgers at macdonalds. Anywhere else you get sacked.
The cop, however, gets to keep cruisin' in the secure knowledge that the well-merited CV entry of "Can't follow written instructions to save his life" won't even be a hindrance to his promotion. Hell, we have ample reason to believe that the CV entry of "Fails to understand that Being Brown is not a felony offense" won't negatively impact the career of a LEO.
[ link to this | view in thread ]
Arrington would not tell Norris what was in his pockets
https://www.youtube.com/watch?v=G3m0gLPgJic
[ link to this | view in thread ]
Re:
Well if they're frustrated because their job is hard, they're free to go fuck themselves and find another one. Just like everyone else.
[ link to this | view in thread ]
Re: Re:
No, I'm sure you'd get fired from MacDonald's for making Whoppers since Burger King would probably sue. ;)
[ link to this | view in thread ]
Re: Re:
Sure it was because Cops are not required to KNOW the law as part of their job description at least as it involves court rulings. The passenger just playing the system and provoking his rights is fucking lucky he wasn't shot 43 times.
[ link to this | view in thread ]
Re:
Criminals breathing is a sign the cops haven't finished with him.
[ link to this | view in thread ]
Re: Re: Re: Re: attempted to divert attention from himself by sp
If you can't get a job in Palm Beach, move about ten miles west!
[ link to this | view in thread ]
Re: Re: Re:
The passenger just playing the system and provoking his rights is fucking lucky he wasn't shot 43 times.
If invoking your rights is playing the system, then let's just go full stop and quit pretending that they're rights.
If cops are too stupid to know that exercising your rights is not grounds for suspicion, the problem is with their stupidity. I'm sick of people apologizing for moron cops - stop making excuses for taxpayer funded idiots doing a shitty job!
Have a fucking standard for fucks sake!
[ link to this | view in thread ]
Re: Re: Re:
Sure it was because Cops are not required to KNOW the law as part of their job description
Do you hold your doctor to the same standard?
[ link to this | view in thread ]
Re: Re: Re: Re: attempted to divert attention from himself by sp
I'm used to the idea that in order to be become an agent of the nation entrusted with enforcing the violence monopoly the most crucial aspect should be the psych evaluation and a lower treshold on how dumb you're allowed to be. This, apparently, does not appear to be the general rule in US states...
If it is the problem would be that they would be applying it backwards, where failing a psych evaluation and having a lower intelligence would be qualities to look for, rather than avoid.
[ link to this | view in thread ]
Re: Re: Re: Re:
I don't think the courts do.
[ link to this | view in thread ]
Re: Re: Re: Re:
The dickhead who just fled from the car had drugs and an illegal concealed weapon. I got fucking standards. Do you?
[ link to this | view in thread ]
Re: Re: attempted to divert attention from himself by speaking l
You might think that. Courts have no such assumption. See Jordan v. City of New London, 2000 U.S.App. Lexis 22195 (US 2nd Cir. 2000) [unpublished].
[ link to this | view in thread ]
Re: Re: Re: Re: Re: attempted to divert attention from himself b
"...If you can't get a job in Palm Beach, move about ten miles west!"
Sounds like an offer a potential future US flatfoot might find tempting, going by what we keep reading about their general cognitive abilities...
[ link to this | view in thread ]
Re: Re: Re: Re: Re: attempted to divert attention from himself b
"If it is the problem would be that they would be applying it backwards, where failing a psych evaluation and having a lower intelligence would be qualities to look for, rather than avoid."
I'd take that as sarcasm, except that factual reality just pulled a Poe on it...
[ link to this | view in thread ]
Re: Re: Re: attempted to divert attention from himself by speaki
"You might think that. Courts have no such assumption."
Apparently so...which is, by the by, frightening.
Among all the parts of public service which should have a "the smarter, the better" policy of hiring, law enforcement ought to be first in line.
[ link to this | view in thread ]
Re: Re: Re: Re:
"Have a fucking standard for fucks sake!"
The "standard" which keeps applying seems to be that people who wouldn't be trusted to do janitorial work in the private sector are somehow entrusted with upholding the law at gunpoint.
I don't know how that situation came to be - and frankly, i don't much care. This should be the subject of a sarcastic sketch or a comedy, NOT reality.
[ link to this | view in thread ]
Re: Re: Re:
"No, I'm sure you'd get fired from MacDonald's for making Whoppers since Burger King would probably sue. ;)"
o_O
Well, in my defense I'm not employed by either MacDonald's or Burger King so at least my blunders are entirely on my own dime.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: attempted to divert attention from himse
Sadly it was an 'I wish I could say this was sarcastic' style comment, as I've read too many articles on TD alone that present a damning picture of what is considered 'acceptable' for far too many police departments to think that that sort of standard wouldn't be accurate for more than a few of them.
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
I got fucking standards. Do you?
Yeah, dumbass. I sure do.
And if the cops did, the "dickhead who just fled" wouldn't have had all the evidence against him thrown out.
My standard is cops should know what the fuck they're doing. What's yours?
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
I see what we have here.
A copsucker, or someone with an asshole cop relative that feels like they can do no wrong, no matter what.
The cop in this case was a dumbass. And a guy with a gun and drugs is scot free because the cop is a dumbass.
Goes back to having a standard, so dumbass cops don't fuck things like this up...
[ link to this | view in thread ]
"A guy with a gun and drugs"
Guns are not typically illegal. And possession of drugs really shouldn't be.
Maybe you shouldn't be so worried about people who have guns and drugs.
Unless, maybe they're using them together. Drunk shooting is a problem like drunk driving, and is a recipe for stupid.
[ link to this | view in thread ]
move along
Gang stalking is not REAL.
These are random occurrences. Stop being paranoid.
Officer Friendly ( and his ADL sponsored buddies)wants to help you
[ link to this | view in thread ]
Re: move along
They knocked out my tail lights for years (as the record demonstrates), and I finally got tired of it, and just kept driving to work.
But it didnt stop-so I bought a gun permit for se;f protection. Then, they killed me in my car. in front of a baby.
Sure, Tim Cushing, gang stalking is not real.
Ever notice how "Hispanic" cops are now implicated in these mass shootings, and seemingly rando events?
Yeah-ADLification is like, a real thing, and black men, armed within their constitutional rights are huge targets.
Like me, Philando Castile.
[ link to this | view in thread ]
Re: Re:
This sort of shit gets you wet between the legs, doesn't it?
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: attempted to divert attention from h
"Sadly it was an 'I wish I could say this was sarcastic' style comment..."
I don't even know which is worse. That we have to say "1984 was not an instruction manual" to police and intelligence agencies, or that we also have to tell them the "Keystone Cops" aren't to be used as role models...
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
This is a common problem: people, like you, saying in one form or another that criminals shouldn't have rights. That catching them is the end that justifies the means.
What they don't see is that, if criminals don't have rights, neither do innocents. How does a cop know that some guy is a criminal before abusing his rights? Answer is: he doesn't. The only reason you don't hear daily about innocent people getting the same kind of treatment is that most innocent people don't care about suing a cop that let them go (eventually). They have other things to do with their lives, time and money than suing cops.
But there are cases of cops acting this way with harmful - up to downright lethal - consequences for innocent people. Read about people getting shot for having a gun they never really had, or getting abusive physical examinations (up to repeated cavity searches) looking for drugs they never had... and more. Lots more.
Once again, do not deny criminals their rights or do not expect to have any right either. Your legal system cannot select who gets to enjoy their rights. If it does, you're in a police state with all the negative meanings behind it.
[ link to this | view in thread ]