By Jon Cassidy | Watchdog.org
HOUSTON – Don Elmer’s bad week was about to get worse.
On a Monday in 2006, he spent the night in jail — a first for him — over a failure-to-appear charge on a speeding ticket. He missed his graveyard shift at the security guard job he was working while he studied to become an emergency medical technician.
Elmer’s boss wanted proof of his whereabouts.
After his shift early Thursday morning, Elmer headed to court to get the paperwork but found it closed. As he drove home, still in uniform, worn out and frustrated, a Houston Police Department squad car was flashing its lights. He was doing 24 mph in a 20 mph school zone, Elmer said.
Elmer wasn’t shocked. His ’79 Pontiac Grand Prix attracted police attention before.
“I’m not gonna lie – it looks like a dope dealer’s car,” he said. “But it’s a classic.”
Elmer is into fitness — he’s a well-built 5 feet, 9 inches and 215 pounds — and he’s black. He knows the profile he cuts, but he doesn’t blame racism. The cop was black, too.
“He saw that particular car and thought there’s got to be something on this guy,” Elmer said.
The officer kept Elmer waiting 15 to 20 minutes as he watched the traffic and chatted with a colleague.
“I’m there in my little white shirt, my uniform, with my firefighter books and EMT books in the back seat, thinking, ‘Come on, man, would a criminal look like this,’” he said.
Finally, Elmer had had enough.
“‘Hey man, could you just write my f**** ticket so I could go home?’”
Bad move. Elmer was under arrest.
In Texas, people can be arrested for just about anything. In fact, speeding is one of just two crimes that can’t get you arrested; the other is having an open container.
Elmer was arrested, not for speeding but for failing to wear his seat belt.
When the judge called his case, “he just bust out laughing,” Elmer said. “He was like, ‘He must have really not liked you.’”
Elmer lost his job, and he had to pay to get his car out of the tow yard.
He can thank Gov. Rick Perry and the U.S. Supreme Court for the nearly unlimited power that Texas law enforcement officers have to arrest anyone, even for crimes such as busted tail lights and unsafe lane changes not punishable by jail time.
Of course, most cops are uninterested in jailing seat-belt violators – they’d be the laughingstock of their departments if they did it often. But Texas police routinely use that arrest authority to coerce people into surrendering their Fourth Amendment protections against unreasonable searches.
“Police arrest people so they can satisfy their hunches about other things and get into vehicles without a warrant,” said Russell Webb, a Houston defense attorney.
Just the threat of doing so is often enough to coerce consent, he said.
Three times in the past 12 years, the Texas Legislature has passed bills to limit this authority — once to stop arrests for mere traffic offenses, once to require police departments to set their own standards for when arrests would be permitted and once to require police to get written consent for searches.
Perry vetoed all three, keeping law enforcement groups happy.
The bills followed a U.S. Supreme Court decision ruling it constitutional to take somebody to jail for minor offenses not punishable by jail time. That 2001 ruling happened to be another Texas seat-belt arrest case — Atwater v. Lago Vista.
In that case, Gail Atwater had just picked up her children from soccer practice and was driving them home when one threw a toy out of a window. Atwater drove back down the quiet residential street at 15 mph, with the kids out of their seat-belts looking for the toy.
A young Lago Vista police officer, Michael Barton Turek, who had failed multiple psychological exams in an unsuccessful application to the Austin Police Department, pulled Atwater over and chewed her out. He had stopped her once months before in the mistaken belief that Atwater’s son wasn’t wearing a seat belt.
When she asked him to lower his voice because he was frightening her children, Turek shouted, “You’re going to jail.” Atwater was handcuffed in front of her children and booked. The Atwaters sold their house to raise the money to fight the indignity but lost in Supreme Court.
The Supreme Court agreed the arrest was unreasonable, even “foolish,” and wrote that “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.” Yet it decided that this didn’t violate the Fourth Amendment prohibition of “unreasonable searches and seizures,” because it would be complicated for the police to draw “a line between minor crimes with limited arrest authority and others not so restricted.”
Justice Sandra Day O’Connor’s pointed out in her dissent that the ruling “neglects the Fourth Amendment’s express command in the name of administrative ease.”
Arnold Loewy, a law professor at Texas Tech, says the operative word in the Fourth Amendment is “reasonable,” yet the court abandoned the principle of reasonableness in the Atwater case.
“Most of the time, when the Court cites ‘reasonableness’ as the overarching principle, it does so to uphold a search,” Loewy writes, citing a case from five years prior, where the court wrote that reasonableness “is measured in objective terms by examining the totality of the circumstances. In applying this test, we have consistently eschewed bright-line rules, instead emphasizing the fact-specific nature of the inquiry.”
So it’s case by case, rather than black and white.
But in Atwater, Loewy writes, the Supreme Court argued the opposite, that “Fourth Amendment balance is not well-served by standards requiring sensitive case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.”
The ruling “gives police tremendous discretion to arrest and then search the vehicle of persons who have done nothing more than fail to signal a lane change or wear a seat belt. Clearly, this decision is a major victory for law enforcement,” wrote one author, who noted “a pronounced tendency by the Court to uphold virtually all police investigatory practices.”
“The Supreme Court has repeatedly shown great deference to law enforcement interests. In doing so, the Court has retreated from its duty to provide meaningful, stringent oversight of police activities.”
That might sound like an editorial in The Nation, but it’s actually from the Handbook of Police Administration, by James Ruiz and Don Hummer. Ruiz and Hummer aren’t denouncing pretext stops; they’re explaining how to do them legally.
Rashad Davis, 36, of Pearland got a firsthand experience of this “tremendous discretion” while driving through the neighboring town of Manvel last month with a friend, Marcus Leslie.
Brazoria County Sheriff’s deputies stopped Davis because his third tail light was out, and they threatened to arrest him over it. Davis and Leslie are black, and while nobody can say that’s why police stopped them, it has everything to do with how they experienced it.
Davis and Leslie were stopped just a few months earlier and questioned at length by a state trooper who wanted to search the vehicle but wouldn’t say why. Davis was still upset about it.
Davis recorded audio of the encounter on his cell phone. Throughout the 13-minute tape, the deputies are leaning on Davis to get Leslie to identify himself.
LISTEN TO THE AUDIO
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Texas law requires arrestees, detainees and witnesses to identify themselves, as well as drivers, of course, but Leslie was none of those. He was just a passenger who wanted to be left alone, and he was within his rights.
“If his tail light is broken, and you’re pulling him over for a misdemeanor, why do you need my identification,” he asks a deputy. “There’s no need for that, sir.”
“Yes sir, I’m trying to identify who you are,” the deputy responds.
Another deputy asks Davis to step out of the car and then frisks him.
Davis asks to be given his ticket so he can get on his way.
“He’s got to go to work and my food is getting cold,” Davis explains.
“I understand that, but until my investigation is over and I’m done identifying everybody…”
“Investigation of what? My light’s broke. I should be free to go,” Davis says.
“That’s the thing, sir,” says the second deputy, turning to the other. “What you’d pull him over for?”
“His third brake light is out.”
“Check it out, check it out – he pulled you over for that. He can cut you loose with a warning, a citation, or he can take you to jail. It is an arrestable offense. I suggest you cooperate with him.”
“I am cooperating.”
When Leslie saw the officers frisking Davis, he gave them his ID.
I asked Capt. Randy Rhyne of the Brazoria County Sheriff’s Office about pretext stops, where police use a minor traffic violation as an opportunity to fish for contraband.
“There is no such thing as a pretext stop,” he said.
Through Rhyne, Brazoria Sheriff Charles Wagner declined to comment on whether his office has a policy on threatening arrest for traffic violations.
“We strive to operate in the guidelines of the law,” Rhyne said.
Getting the ticket wasn’t the worst part for Davis.
“The most aggravating thing was being frisked publicly like a criminal,” Davis said.
In many jurisdictions, blacks have to tolerate that aggravation far more often than whites, statistics show.
A 2011 report for the Office of the Police Monitor for Austin found the department searched a much higher percentage of blacks and Latinos who were stopped than whites:
“Blacks/African Americans are searched one out of every eight times a member of this group is involved in a traffic stop. Hispanics/Latinos are searched one out of 10 times; Caucasians are searched one out of 28 times. Despite the percentage of searches, there is virtually no difference in the likelihood of contraband being discovered within the three groups.”
For all three groups, contraband was found between 20 percent and 22 percent of the time.
Whenever the issue of Fourth Amendment protections comes up, there are always folks who wonder why they matter. If you’ve got nothing to hide, why not just do whatever the police tell you? What reason could anyone have not to identify himself to police?
Albert Florence of New Jersey should have had nothing to fear from the law. There was an old case he was involved in that resulted in a court fine, but he had paid that off years prior and even had proof in the glove box.
Florence was in the passenger seat of the family BMW on the way to his mother-in-law’s house when his wife was pulled over for speeding. Albert produced ID when asked, and the cops discovered an outstanding warrant that should have been quashed years prior, when the fine was paid.
Florence spent six days in county jails and was strip-searched twice, once in a room full of people, all over a paperwork mix-up.
The Supreme Court ruled that those searches were reasonable, however Florence felt about them.
Leslie’s reason for not wanting to identify himself was simple: “I’ve seen too many videos of people getting pulled over and roughed up.”
Being treated like a criminal suspect twice in the last year is affecting his view of law enforcement.
“We want to honor the police, but when they keep doing things like this, it tarnishes the honor that we have for them,” he said.
Neither man thinks much of anti-profiling measures. Cops are always going to be suspicious – it’s their job – and there’s little evidence to suggest their suspicion will ever perfectly align with demographic breakdowns, or that it should.
But wouldn’t a healthy Fourth Amendment do more than sensitivity training to keep police from intruding too far on nothing but a hunch?
“Most definitely,” Davis said.
Contact Jon Cassidy at [email protected] or @jpcassidy000.