1999 — the year in review:
Big rulings, with bigger ones yet to come
The U.S. Supreme Court decisions prohibiting the city of Chicago from breaking up gang activity with an anti-loitering ordinance and banning media ride-alongs on police raids had an immediate impact on law enforcement practices last year, but even more profound changes may be yet to come in the spring of 2000, when the Justices are expected to hand down rulings addressing such ingrained elements of police procedure as the Miranda ruling and stop-and-frisk tactics.
Supreme Court observers were little surprised by the decision to uphold an Illinois ruling that overturned a 1992 city law giving Chicago police authority to disperse loiterers as a anti-gang tactic. For months before making their highly anticipated decision in City of Chicago v. Morales on June 10, the Justices had voiced concern over the sweeping power the ordinance gave law enforcement.
The decision stemmed from a challenge to the law by the American Civil Liberties Union on behalf of 66 defendants, 34 of whom were not alleged to be gang members when they were arrested and prosecuted. The ordinance was adopted by the Chicago City Council after witnesses at public hearings testified that gang members used loitering as a strategy for taking over entire city blocks.
Under the law, police were given discretion to order suspected gang members, and anyone who stood nearby, to move along or face arrest. Those arrested could be charged with a misdemeanor carrying a jail term of up to six months and a fine of $500. During the three years the law was in effect, it was used to arrest 42,967 people and disperse more than 89,000 loiterers.
A majority of the High Court agreed with the Illinois Supreme Court’s ruling that the ordinance restricted personal liberty in violation of the 14th Amendment’s due process clause. “The freedom to engage in such harmless activities [as loitering] is an aspect of the personal liberties protected by” the U.S. Constitution, said the Illinois court.
The Justices found the law gave police too much discretion and the public too little knowledge of what was illegal. They deemed insufficient Chicago’s analytical argument that there is nothing vague about a police officer’s order to move along. In writing for the majority, Justice John Paul Stevens said: “That the ordinance does not permit an arrest until after a dispersal order has been disobeyed does not provide any guidance to the officer deciding whether such an order should issue.”
Justice Sandra Day O’Connor, in a concurring opinion, pointed to a type of narrowly-worded anti-loitering ordinance that calls for law enforcement officials to obtain a court order naming specific gang members or restricting who they might associate with and what behaviors they might engage in. Such ordinances would probably pass the Court’s muster, she observed.
Reporters not welcome
Another decision that affected the policies of a number of police agencies last year was the Court’s unanimous ruling in May forbidding reporters to tag along with officers on raids at people’s homes. Under the ruling, officers who allow the media such access can now be sued for Fourth Amendment violations. In writing for the Court, Chief Justice William Rehnquist said, “The need for accurate reporting on police issues in general bears no direct relations to the constitutional justification for the police intrusion into a home.” The need for good public relations for police, he said, was not enough on its own to justify the practice.
The ruling stemmed from two cases that were combined into a single argument. In one case, Wilson v. Layne, a Rockville, Md., couple was prohibited by a lower court from suing the Montgomery County Sheriff’s Office and Federal marshals who brought a reporter from The Washington Post on an unsuccessful attempt to capture the couple’s son, a fugitive they believed was in the house. The Court upheld the decision of the U.S. Court of Appeals for the Fourth District that rules against such ride-alongs were not clear at the time of the incident in 1992.
The other case, Hanlon v. Berger, involved a couple whose Montana ranch was raided by U.S. Fish and Wildlife agents in 1994 on suspicion that eagles were being illegally killed there. The agents brought reporters from the Cable News Network on the raid. One agent wore a hidden microphone that broadcast conversations that took place in the house to CNN reporters. After Paul and Erma Berger were convicted on misdemeanor charges in 1994, CNN aired the footage of the raid. The Bergers’ were allowed to press their suit against the network and the agents by the U.S. Court of Appeals for the Ninth Circuit.
Justice Sandra Day O’Connor called the Maryland incident an “amazing invasion” of the Wilsons’ privacy. The High Court was unimpressed with arguments by Richard A. Cordray, the attorney representing the Federal agents in both cases, that officers have discretion to bring along with them on raids anyone — including the media — they believe will help them in their crime-fighting strategy. In one instance, Justice Antonin Scalia provoked laughter in the courtroom by asking if that included officers’ sisters-in-law.
Infestation of flees
The law enforcement community, meanwhile, is eagerly awaiting a ruling from the Court on an appeal that has the potential to significantly alter what police have come to consider their prerogative in detaining suspects. The case involves a Chicago man, William Wardlow, 45, who was arrested on Sept. 9, 1995, when he sprinted up an alley in a high-crime neighborhood after seeing four police cars approaching. He was chased, patted down, and found by police to be carrying a .38-caliber handgun inside an opaque plastic bag. Wardlow, who was arrested, had a criminal record that prohibited him from possessing a handgun.
The case turns on the issue of whether police have the authority to search someone who merely runs away from them. Wardlow’s conviction for illegal possession of a weapon was thrown out in 1997 by an Illinois appellate court, which cited the landmark 1968 decision in Terry v. Ohio in holding that fleeing police did not justify a pat-down search. In upholding the decision, the Illinois Supreme Court joined courts in Nebraska, California and Michigan and six other states which have ruled similarly. Courts in seven other states, however, have ruled the opposite.
In arguments on Nov. 3, six of the nine Justices expressed concern that giving police power to search anyone who flees could intrude on too many innocent people. In some instances, suggested Justice David Souter, people might just be running to get away from what they believe could turn into a police shootout. Justice Anthony M. Kennedy asked whether a stop would be justified if police “swoop down” on neighborhoods in order to cause people to flee. And Stevens wondered whether police might drive through a neighborhood with sirens blaring to see who runs. “Is there a right of an individual to go their own way?” asked O’Connor. “Can you walk away rapidly? Can you just not want to have anything to do with them?”
Cook County State’s Attorney Richard A. Devine argued that police should have the right to stop and question anyone who runs, without provocation, after seeing an officer. Flight, he said, is inherently suspicious behavior. The state has been joined in its appeal by an array of police organizations, including the National Association of Police Organizations and the International Association of Chiefs of Police. Said NAPO Executive Director Robert T. Scully: “Police cannot be expected to shrug their shoulders and look the other way at obvious and highly suspicious behavior.”
Three years earlier, a Federal judge in New York City, Harold Baer Jr., threw out a drug case on the same grounds at issue in the Wardlow case. Baer suggested that fleeing from police was understandable and not suspicious. Threatened with impeachment, Baer later reversed his ruling and apologized to police.
The High Court said last year that it will also review another appeal in which Terry v. Ohio was invoked by a state court. The Supreme Court of Florida, reversing an appellate court’s decision, ruled that Miami police violated Fourth Amendment protections when they stopped and frisked a 16-year-old on Oct. 13, 1995 whom a tipster said was carrying a concealed handgun. The officers frisked the youth and several other boys, although the tip concerned just the individual wearing a plaid shirt. A gun was found, and the boy was arrested.
Although a trial judge threw out the evidence of the gun, stating that “the evidence was insufficient to support a reasonable suspicion of criminal activity,” the state appeals court found the search legal. In overturning that decision, however, Florida’s highest court ruled that police officer’s independent investigation only corroborated the “innocent details” and did not establish that the suspect was engaged in suspicious activity. Approving the frisk would create an unacceptable “firearm exception” to Terry, the court ruled.
Seven little words
With the lines: “You have the right to remain silent…,” the 1966 ruling in Miranda v. Arizona not only became a rote part of police procedure, but an indelible part of pop culture as well. In April, a Federal appeals court in Richmond, Va., ruled in United States v. Dickerson that a convicted bank robber’s volunteered confession was admissible even though he had received a Miranda warning. The court held that incriminating remarks made to FBI agents by Charles Dickerson, who is accused of seven bank robberies in Maryland and Virginia, should be admitted even though he may not have been Mirandized properly. In an 8-5 decision, the judges ruled that a 1968 law, Section 3501 of the Federal criminal code, supersedes Miranda and allows confessions to be admitted if they are voluntarily made.
Although the High Court has not yet indicated whether it would review the case, the issue pending before it would be to decide what happens when police fail to give the Miranda warnings — a failing that routinely costs prosecutors valuable evidence.
In a surprising move, however, the Justice Department filed a brief with the High Court arguing that the Miranda warning is “of constitutional dimension” and “cannot be superseded merely by legislation.” Police organizations, as well, are not keen on seeing Miranda overturned. Gene Cromartie of the International Association of Chiefs of Police said it would “open up a Pandora’s box.” It is not difficult to read someone their rights, he said.
Armed and dangerous
The High Court ruled 7-2 in March that those accused of multistate crime sprees could be prosecuted in any of those states for using a gun even if they had only carried or used the gun in one state. The decision in U.S. v. Rodriguez-Moreno stemmed from a case in which a man and five accomplices kidnapped the middleman in a drug deal in 1994 and took him from Houston to New Jersey, where his wife and children were also being held captive. In addition to other charges, the defendant, Jacinto Rodriguez-Moreno, drew an additional five-year sentence for using a gun during a violent crime.
The gun conviction was thrown out, however, by the U.S. Court of Appeals for the Third Circuit, which ruled that Rodriguez-Moreno could not be prosecuted anywhere but Maryland, where the defendant obtained a gun and threatened to kill the victim. The High Court reinstated the gun conviction, with Justice Clarence Thomas saying the appeals court was wrong because the underlying crime of kidnapping had occurred in four states.
Around the courts
A number of other key decisions affecting law enforcement policy were rendered around the nation by state and Federal courts last year, as well.
The Massachusetts Supreme Judicial Court ruled June 14 that people cannot be ordered out of their cars during traffic stops unless police believe they pose a threat.
In Tennessee, the state Supreme Court ruled in March that police officers must arrest a motorcyclist before they can search a motorcycle. In a 3-2 decision, the court found that drugs and weapons found on the motorcycle of Bobby Crutcher after a 1995 chase were inadmissible as evidence.
New York City may no longer prohibit employees from reporting the names of undocumented aliens to Federal authorities, according to a decision by the Second U.S. Court of Appeals in May. The appellate court found that the city could not ignore key sections of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which invalidate state and local ordinances barring employees from voluntarily providing information about illegal aliens. The policy had been created by officials concerned that undocumented aliens, fearing that police would contact the Immigration and Naturalization Service, would be less likely to aid in criminal investigations.
The U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., ruled in a 7-4 decision that rape victims will no longer be allowed to sue their attackers in Federal court for civil rights violations. In a lawsuit filed under a provision of the 1994 Violence Against Women Act, a Virginia Tech student argued that her civil right to be free from gender-motivated crimes of violence was violated when the college mishandled proceedings against two athletes she accused of rape. No criminal charges were ever brought against Antonio Morrison and James Crawford. The appellate court held that Congress had overstepped its bounds when it relied on its power to regulate interstate commerce to enact the law.