Testiliars

The Fourth Amendment to the U.S. Constitution was incorporated into the Bill of Rights in response to the British Writs of Assistance – search warrants that allowed the British authorities to enter any colonist’s home at any time and for any reason. Resistance to the Writs played a significant role in the lead-up to the American Revolution. When asked to defend the Writs, Boston attorney James Otis, who considered himself a loyal British subject, promptly quit his post as Advocate General of the Admiralty Court and defended a group of colonial merchants who were challenging the legality of the Writs. John Adams later wrote in his autobiography of Otis’s oration against the writs: “Then and there, the child independence was born.”

The Fourth Amendment was established to protect citizens against these kinds of general searches. It required that police officers conduct searches only when they had “probable cause, supported by oath or affirmation.” Probable cause means that the officers have reason to believe that a person has committed a crime. Supported by oath or affirmation means that the officers swear under penalty of perjury to the truth of the information upon which their belief was based.

Over the last 40 years, the threshold of what constitutes probable cause has been lowered through a series of Supreme Court decisions. In Terry v. Ohio (1968), the Court held that a police offer can stop and frisk a suspect if the officer has a “reasonable suspicion” that the suspect is armed. This standard was later extended to traffic stops. In Illinois v. Gates (1983), the Court held that a “substantial chance” or “fair probability” of criminal activity was enough to establish probable cause.

But even this eroded Fourth Amendment is apparently not enough for some NYPD police officers. In an article in today’s New York Times, Benjamin Weiser writes that judges’ rulings in suppression hearings – in which defendants can argue that evidence was seized illegally and should therefore be suppressed at trial – show that over the past six years, there have been 20 cases in which judges have found police officers’ testimony to be less than truthful. The language judges have used in their decisions includes “patently incredible,” “riddled with exaggerations,” and “unworthy of belief.”

Moreover, judges rarely ask prosecutors to look into whether the officers had broken the law with their false testimony, and prosecutors rarely notify police authorities. So officers generally face no consequences for their “testilying,” as they themselves refer to the practice.

In a rare instance in which a police officer was convicted of perjury for lying to a grand jury about an arrest he had made for illegal gun possession, he was sentenced to five years’ probation. Prosecutors and investigators looking into police corruption at the time called it an example of what they feared is the most widespread form of police misconduct facing the criminal justice system. “Testilying,” they said, was “rarely prosecuted, often condoned by superiors and an intrinsic part of the police culture. The year was 1993.

As Weiser points out in his article, though the number of cases is small, suppressions are so rare in federal court that one former federal judge has questioned whether these cases indicate that giving false testimony may be a common police tactic. As this judge pointed out, “We don’t have statistics for all the people who are hassled, no gun is found, and they never get into the system.”

I myself cannot remember the last time a judge, federal or state, suppressed a gun in a case in which I was involved. While 20 such rulings in the last six years may not sound like a lot, it represents a sea change.

We are all grateful for lower crime rates, but this worthy goal cannot be pursued by trampling on the Constitution and subverting the individual rights and freedoms on which this country was founded. It is heartening to see federal district judges doing the right thing and ruling against the “testiliars,” though given the long history of the practice, it may be too much to hope that police officers will now get the message and stop. CR

What were they thinkin’?

Shortly after 9/11, the DOJ concluded that constitutional protections against unreasonable searches and seizures did not apply to domestic military operations. As reported in yesterday's Wall Street Journal, this “radical interpretation” of the Fourth Amendment was tucked into a footnote in some newly declassified documents released Monday by the ACLU.

As a former military prosecutor who advised military investigators and soldiers on issues relating to the Fourth Amendment, I have to ask myself, what were they thinkin’? First, you have to wonder what domestic operations the military was conducting. This is significant, since the Possee Comitatus Act (codified at 18 U.S.C. § 1385) expressly prohibits the use of the military “to execute the laws.” There is nothing wrong with amending the Act to allow the military to assist local law enforcement officials within the United States (see Hamdi v. Rumsfeld). Congress did just that in 1981 by creating a “drug exception” allowing the military to lend a hand in the war on drugs. But any tweaking of the law is up to Congress, not the Executive. Second, if the DOJ concedes that the Fourth Amendment applies on a dusty military post in West Texas, why shouldn’t it apply during domestic military operations on Main Street USA?

Maybe we all need to heed the words of Justice O’Connor in Hamdi: “It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most surely tested; and it is those times that we must preserve our commitment at home to the principles for which we fight abroad.” CP