Last Friday morning, I argued an appeal before the Second Department in a case involving a number of good issues, one of which was the denial of suppression.  Two detectives received a radio call that an armed robbery had just occurred, and they were looking for a perp in a burgundy Infiniti.  That was about it on information.

My argument on this issue focused on the “burgundy Infiniti” aspect of the call.  The detectives spotted one a few blocks away from the scene, pulled next to it and one detective jumped out of his car with his gun drawn, screaming “put your hands up.”  He couldn’t see inside the car as the windows were darkly tinted, so he opened the car door.

At the hearing, the detective conceded that his actions on the street that day violated police procedure, though he didn’t testify as to what proper procedure would be.  The gist of the argument was that the description, “burgundy Infiniti,” was too vague to establish reasonable suspicion to believe that this was the car they were looking for, and that his approach with gun drawn constituted a full blown seizure, beyond the scope of his authority. 

The presiding judge asked a question:  What else could the detective have done? 

The smart-aleck answer would have been, comply with the Constitution.  That response would have been particularly unhelpful and antagonized the judge. 

The judge’s point was that he wasn’t really disputing that the information about the car was too vague, but that the detective have limited choices.  The proper procedure would have been to pull the car to the side of the road, call for backup (since his information was that it was an armed robbery, giving rise to a reasonable belief that the occupants of the car might be armed if this was the right car) and then approach the car to determine whether this was the right car. 

The judge didn’t see how approaching the car, without a gun drawn and in “shock and awe” mode, would have been safe of the officer.  I can see his point. 

There are a variety of reasons why the officers conduct was improper.  There could be potentially hundreds or thousand of cars that meet the vague description of burgundy Infiniti within relative proximity.  There were indicia that this was not the car, particularly the lack of a description that included darkly tinted windows, a stand-out aspect of the car.  But it was certainly possible that this was the car, and the detectives would have been derelict had they not done something.

But consider what could have happened as a result of the detective’s cowboy approach.  What if he fired out of fear, accident or just bad judgment?  And inside the car was grandma and grandpa, a little slow on the move and hard of hearing.  What if this was the car of the bad guys, and they started a gunfight on the road with the detective, on a heavily trafficked road, where bystanders would have been struck by flying bullets.  There were numerous problematic scenarios available resulting from the detective’s conduct.  Of course, none of them happened or we might be looking at the next Sean Bell trial.

From a legal point of view, the appellate court became involved in weighing the constitutional issues with the very practical problem of police tactics.  While application of dogmatic constitutional law was clearly in my favor, they had great difficulty seeing how it would play out on the street in a way that would enable the police to do their job, and do it safely. 

The judge shifted the burden of resolving this problem to me by his question, not so much for an answer but as a way of showing that the strict application of law would result in an untenable situation.  The problem is that neither the judges aren’t police strategists.  Nor am I.  While lawyers gain a working knowledge of many things in the course of their career, it doesn’t make us experts at everything by a long shot.  So the entirety of this discussion was misplaced:  None of us were competent to address the problem.  Should we be?

My issue is that we are lawyers, working with an issue of constitutional law.  Is it our role to trade off the Constitution with viable police procedures?  We know the former.  We do not know the latter.  And what business does a court have giving away constitutional rights for the practicalities of something none of us have an answer to?  Yet this is a constant theme on appeal.  When weighing the application of constitutional rights, judges always try to understand and appreciate the practical effect of their decisions.  At least when it comes to the police.

While I have some theoretical understanding of how I believe the police should have handled the situation in order to do their job while not violating the Constitution, I do not believe that it is my role as an attorney to provide a viable police tactic in order to secure my client’s constitutional rights.  I don’t accept the notion that wild, cowboy police conduct either enlarges police authority to ignore the Constitution or in any way minimizes my client’s constitutional rights.  Essentially, my position is that the Constitution protects individuals, and it’s the responsibility of the police to find a way to do their job without violating constitutional rights.  But that’s not the way things work in real life.

It’s frustrating to read the lawprofs discussions of how courts should decide case knowing that all the deep-thinking nuances they so love are trumped by a bunch of semi-ignorant lawyers trying to figure out the practical implications of a rule.  No matter how many decisions are cited, or how clearly the law is set out, there will still be the question, “but what were the cops supposed to do?”

To ignore the fact that judges want and expect the cops to do their job, capture the perp and make us save, is folly.  By definition, the end result can’t be too bad, since we’re on appeal, meaning the somebody has been convicted for the crime.  In other words, it may have been a messy bust, but they did get the right guy.  This isn’t supposed to have anything to do with suppression or consideration of constitutional issues, but it always has some degree of impact.  If they stopped the wrong car, we wouldn’t be there.

Some years ago, I did a suppression hearing in New Jersey for a mule who was taking a large quantity of narcotics to Ohio from New York.  He was busted on the Route 80 corridor, a major drug trafficking route to the west, where Jersey cops stopped any minority driver to search for drugs.  After winning suppression, the cop (who was a nice guy) asked me what he should have done.  He was distraught by the fact that his bust went south, and thought he had nailed it properly.

I told him not to be too upset by the decision.  After all, he had taken a substantial quantity of drugs off the street, even though the perp would walk.  I explained that there was no lawful way for him to stop vehicles because of profiling; even minority drivers were allowed to travel without being subject to a stop.  He thought this was silly, but understood that the law was often silly in his eyes. 

While I anticipate a positive decision from the Second Department on my appeal based upon other, less controversial arguments, the suppression argument was the one that I knew would be the hardest to make but had to be done.  The vitality of the Constitution cannot be subject to the practicalities of police procedure, and neither the court nor I should be in the position of trying to figure out how the cops should do their job in order to give force to the Constitution.  I see the problem.  It’s just not my problem to solve. and it’s not theirs either.