It doesn't happen often, but it's always good to see a federal court push back against claims of "training and expertise." This phrase is often used to excuse rights violations and horrendous judgment calls -- somehow asserting that the more cops know, the less they should be held directly responsible for their acts.
The case being handled by the Fourth Circuit Appeals Court deals with some drug warriors and their willingness to work backward from their assumptions to something they sincerely wanted to believe was probable cause for a search. But the Appeals Court sees no "training and expertise" here. Instead they see officers motivated by hunches, which are not synonymous with probable cause, much less reasonable suspicion.
Here's the court's ultimate conclusion [PDF], which is supported by the lack of support for the cops' arguments, which relied heavily on assertions of "training and expertise."
In order to sustain reasonable suspicion, officers must consider the totality of the circumstances and, in doing so, must not overlook facts that tend to dispel reasonable suspicion. Here, officers relied on general information from a confidential informant; two interactions that officers believed were consistent with the manner in which illegal drugs are bought and sold, but in which no drugs were found; and a single officer witnessing a handshake between Appellant and another man and concluding that it was a hand-to-hand drug transaction, even though the officer did not see anything exchanged. Moreover, the officers concluded this amounted to reasonable suspicion, overlooking the facts that the interaction took place in a public space, in broad daylight, outside of the vehicles, and in front of a security camera; and after the interaction, Appellant went into a store, rather than immediately leaving the scene. On these facts, we agree with Appellant that the officers did not have more than a mere hunch that criminal activity was afoot when they stopped Appellant.
The broad brush of this summary is pretty damning. The details, even more so.
It all started with a "tip" from a confidential informant. The informant told law enforcement a black fellow might sell some drugs. As the court notes, the CI's "tip" contained nothing that would turn this into probable cause. It didn't say the person had sold drugs in the past. It offered no suggestion the person was going to sell drugs to the CI in the future. The only solid info officers had was that the vehicle tags provided by the CI were linked to someone who had been arrested for drug offenses in the past.
The cops got the tip in August 2017. But they did nothing until October 2017. Surveillance of the house listed on the vehicle registration began. The house was surveilled ten times and no drug transactions were witnessed. Investigators moved on to surveilling the resident of the suspect's assistant. The residence was "observed" over 30 times and no drug transactions were seen.
A car driven by someone who had sat in a car with the original suspect was stopped. No drugs were found, despite the drug dog's "alert." Detectives speculated the presence of syringes in this car indicated the driver was a drug user.
Officers began tailing the suspect. They observed him sitting in a gas station parking lot where he never interacted with anyone. They observed him going home. They observed him visiting a house and later leaving carrying a bag to his car. And their informant later told them that the suspect had called and said he had drugs to sell.
No controlled buy was ever set up using the informant. Instead, officers followed the suspect to a car stereo dealer. And this is where the "training and experience" apparently kicked in.
Detective Moore testified that the surveillance team was “expecting someone to meet [Appellant] and this to be like the other occasions when somebody would meet him.” J.A. 78. Detective Moore testified that this stop was consistent with how he would expect a drug transaction to occur.
If this was a drug transaction, it was a terrible place to engage in illegal activity. First off, the alleged incident happened in broad daylight in a busy public parking lot. Second, it occurred directly in front of the business's surveillance cameras.
Despite this, Detective Douglas Moore was sure the suspect was engaging in drug sales. He testified that his "training and experience" made it clear regular-ass handshakes are "hand-to-hand" drug transactions.
[O]n cross-examination, when specifically asked if he saw drugs or money exchange hands, Detective Murphy testified that it was just the actions and mannerisms that indicated to him that it was a drug transaction. He did not actually see drugs exchanged. Nor did he see money exchanged. See J.A. 120 (“Q. So you didn’t see any drugs or money exchange, just the actions and the mannerisms and it being a second handshake and it being longer than the first handshake, you believed it to be a hand-to-hand? A. Yes, sir.”). Detective Murphy provided no further detail about why this second handshake led him to conclude that a hand-to-hand drug transaction had occurred. In fact, when asked to describe why he thought the second handshake was a “hand-to-hand transaction versus just another greeting,” Detective Murphy testified, only, “Well, the first interaction was brief. The second, what I believe to be the hand-to-hand transaction, was more deliberate and it wasn’t as brief as the first action.”
So, the difference between a legal handshake and an illegal handshake is in the eye of (only one) beholder. And that's what instigated a search and the discovery of drugs.
No good, says the Appeals Court. Give this "training and expertise" bullshit a rest. It dismantles every single one of the detective's arguments in favor of presumed probable cause. First, the information obtained from the confidential informant:
[T]he only information that proved useful to detectives in connecting the informant’s tips to Appellant was the vehicle tag number that was connected to him. But that alone does not connect him to drug trafficking. It connects him to a vehicle and that is it.
Then the second handshake, which Detective Moore claimed was actually the consummation of a drug transaction:
As to the notorious second handshake, the Government contends this second handshake provided the officers with reasonable suspicion because Detective Murphy testified that the second handshake was a “hand-to-hand” transaction. However, Detective Murphy never provided more than this conclusory testimony. In fact, Detective Murphy never witnessed drugs or money change hands, and his testimony did not provide any details about the handshake that allows us to view this second handshake as suspicious.
Do better, says the court:
[W]e cannot hold that officers’ bare suspicion of drug trafficking -- without more -- can allow even an experienced officer to reasonably conclude that such a benign and common gesture can be viewed as an exchange of drugs. This cannot amount to reasonable, particularized suspicion.
The ends cannot be used to reverse-engineer justification for the means.
The Fourth Amendment does not allow the Government to label a person as a drug dealer and then view all of their actions through that lens.
And here's the concurrence, setting fire to speculative "training and expertise" assertions. Trying to convert a seemingly harmless handshake into "reasonable suspicion" just because it seemed more "deliberate" than the first one the detective observed does direct harm to citizens, especially when courts decide an officer's speculation is more trustworthy than actual facts.
We therefore have thin facts—the handshake appeared long and purposeful— bolstered by a thinner interpretation of those facts—the handshake was “consistent with” a drug transaction. Such meager testimony would not have received the same degree of deference had it come from someone other than a law-enforcement officer. But in the half-century since Terry v. Ohio, we have afforded greater and greater weight to officers’ “training and experience”—often at the expense of the robust judicial scrutiny that the Fourth Amendment demands.
Our practice of affording strong deference to “training and experience” has costs. [...] It incentivizes veteran officers to lean on their “impressions” instead of doing the hard work of building a case, fact by fact.
As the concurrence points out, granting this much deference to cops does little more than offer judicial blessing for biased policing and rights violations. If cops want to be trusted in court, they need to earn it, not expect it.
In my view, judges can begin to curb these ill effects by dialing down the deference—even slightly—and treating police officers like other expert witnesses. Doing so would be consistent with both precedent and common sense. If a veteran officer catches something that would elude a novice—a code word, a pattern, etc.—he may of course rely on it, so long as he can later explain in court why the fact is significant. But if an officer's explanation is paltry or conclusory, as in this case, the judge must not hesitate to assign it less weight.
That would be a welcome change from the current status quo -- one that says cops are full of knowledge and everyone accused of a crime is full of lies. The burden of proof still remains on the government. And this burden should include offering evidence that supports "training and experience" assertions made by officers, rather than assuming anyone with a few years on the force is inherently an expert on illegal activity and human behavior.
With thanks to our Friends over at : Techdirt.
Read the Full Story : Click here