Reading the Second Circuit’s affirmance of District Court Judge Shira Scheindlin’s suppression ruling in United States v. Watson, my initial thought was that it was a shame that Judge Barrington Parker wasn’t on the panel. The affirmance was written by District Court Judge Jed Rakoff, sitting by designation, suggesting an alignment of stars that rarely happens.
But Judge Parker has that patrician look to him, plus of course he’s a federal judge. having survived the mean streets of New Haven while a student at Yale. Would he be able to appreciate the fallibility of cross-racial identification? Well, Judges Scheindlin and Rakoff did.
Tim Cushing at Techdirt provides the tl;dr version of the facts:
A couple of years ago, the NYPD was searching for a robbery suspect with the following description:
On the morning of April 2, 2013, New York City Police Officers Christopher Vaccaro and Damon Valentino were ordered to locate and arrest Chauncey Butler, a third-degree robbery suspect. The officers were provided with a photograph of Butler from a previous arrest and an investigation card, or “I-Card,” that contained “pedigree information.” Based on these records, the officers had at their disposal Butler’s race, black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19; and home address, on Valentine Avenue in the Bronx.
In addition, one of officers had direct knowledge of Butler’s physical features, having arrested him previously on drug charges. Despite this info, the officers looking for Butler decided — after a fruitless ninety-minute search — that another black male could be made to fit the description.
[A]t about 5:00 in the afternoon, when it was still light out — [the officers[ came across Watson and stopped to observe him. Watson is black, 6’2” tall, and was 180 pounds and 25 years old at the time.
Watson was in the vicinity of the description, but didn’t necessarily fit it.
Watson. Butler. Black guys. Close enough for police work. Wink. Judge Scheindlin is not the sort to wink back.
In addition to their different facial features, skin tone, height, and weight, Watson is over five years older than Butler. Vaccaro’s generic description of the similarities between Watson and Butler undermines the contention that he reasonably believed them to be the same person.
The government argues that it would have been illogical for the officers to ask for identification prior to searching Watson, but I reach the opposite conclusion: It would have been illogical and imprudent not to ask for identification. While Vaccaro’s belief that Watson was Butler might have been the basis for the stop, it was not the basis for the search.
And the Circuit agreed.
The rule that the government would have us adopt has the practical effect of permitting police officers to search any black male who is of roughly similar height, age, and skin tone to another black male charged with a crime. Such a rule is unreasonable on its face.
The government’s argument was that, regardless of the problematic detail that Police Officer Vaccaro had previously arrested Butler, and thus should have had some clue who he was (which, it explained, was totally reasonable because Vaccaro arrested lots of black guys and they all blend), the test was objective reasonableness, and that it is objectively reasonable to mistake any given black guy for any other.
Welcome to yet another in the series of dirty little secrets, obscured behind the rhetoric of excuses proffered to conceal what everyone in the system has long known. Prosecutors will raise issues of lighting, timing or distance, all the issues they dismiss when raised as to a non-cop’s identification of a perpetrator, but those are just the official excuses because they can’t just come out and say what they really mean, that blacks all look alike to white cops, and they look like perps.
While it’s understandable that no one, neither prosecutors nor judges, are free to openly admit to the fact that the racism is flagrant, let’s not pretend it’s anything other than what it is. Read enough police reports of the descriptions of suspects and you realize they ought to just provide pre-printed forms.
Male; black; height, 5’10” to 6’0” tall; hair color, black; weight, 155 to 180 pounds; age, 19…
This would limit the search to, oh, a few thousand people. The specifics tends to be about their clothing, with insightful details like, “jeans, a sweatshirt, sneakers,” which limits it a little, though it won’t stop them from tossing a guy in a suit and tie because, well, he could have changed his clothing since he’s a criminal, and criminals do stuff like that to conceal their identify and thwart arrest.
But there is one flaw to the government’s argument in regard to district court’s application of Vaccaro’s subjective belief to the facts of the case, the confusion of Butler for Watson after Vaccaro approached, was shown identification by Watson to prove he wasn’t Butler, the guy Vaccaro had previously arrested, and whom Vaccaro claimed he just couldn’t distinguish.
Because the foregoing provides a sufficient basis to uphold the district court’s decision, we need not reach the issue of when, if ever, a search can be upheld despite the searching officer’s subjective belief that he lacks any factual basis for the search. Cf. Devenpeck v. Alford, 543 U.S. 146, 153 (2004) (“Our cases make clear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause.”) (emphasis added); see also Sibron v. New York, 392 U.S. 40, 64 (1968).
When a cop actually knows something, like who a particular guy is, the prosecution can’t go with the tacit “all blacks look alike excuse.” This is why it’s always more liberating for police to bask in ignorance, as they are then unfettered by the limits of “facts that he knows.”