View Full Version : Stopping the Innocent: SCOTUS Edition

10-07-2014, 10:01 AM
Gamso - For the Defense
Commentary by an Ohio criminal defense lawyer

Tuesday, October 7, 2014
Stopping the Innocent: SCOTUS Edition
Well, there -- wholly innocent people are stopped quite often because of mistakes of fact, for instance. That's part of the whole Terry ** how Terry works and those types of brief stops. There turns out times that citizens have not committed any kind of offense, and yet they are stopped.
Robert C. Montgomery, Senior Deputy North Carolina Attorney General, oral argument, Heien v. North Carolina.
* * * * *
It was at the U.S. Supreme Court Monday morning, the first Monday in October. Montgomery was trying to answer a question from Justice Sotomayor who wondered just how many folks in the Old North State (Tarheels they) get illegally stopped for having only one brake light* and then asked if they're ok with having the cops search their car. And, she wondered,
[I]s that something that we as a society should be encouraging?
Montgomery told the truth, of course.

Cops stop lots of innocent people. They do it all the time. Enthusiastically. On the flimsiest of excuses that they say (and the courts are willing to believe) amount to what the Supremes said in Terry v. Ohio is enough for a stop: "reasonable, articulable suspicion." It's a standard just about any cop who's not brain dead can make up shit to satisfy, which is one reason the Fourth Amendment has become more a cover for the police than a shield against police misconduct.

But you know, there are truths and there are truths. And this is one that nobody in authority is supposed to admit. That much of what the cops do is just stopping folks for no acceptable reason.

Except that they wanna. And they can get away with it. Because we let them.

Which takes us back to Sotomayor's question about what we should be "encouraging." And back to Stop and Frisk and Driving While Black and being Hispanic in Maricopa and

The actual question in Heien, the one the Court agreed to answer, looks straightforward enough.
Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop.
As often happens during oral argument that's not mostly what they talked about. Mostly what they talked about was whether the question mattered or they should have been answering another question. (If it happen that hte stop was illegal, what should happen to the ensuing search of the car?)

But there was that single line, really, just part of a sentence.
wholly innocent people are stopped quite often
And the rest, never quite said because it's impolitic.
And we're good with that.
Besides, it doesn't happen to us.

Just to them.

It's one of those times when we don't disguise that the Rule of Law is, in fact, the Law of Rule.

Which Deputy Attorney General Robert Montgomery came right out and admitted.

*Do not try this at home unless home is North Carolina. The law pretty much everywhere else in these United States is that you have to have two working brake lights.