Editor’s note: This article originally appeared in The Chief’s Chronicle; New York State Association of Chiefs of Police. Reprinted with permission.
In recent years, I have fielded an increased number of search and seizure law questions, primarily related to traffic stops. Digging deeper, I discovered a common source of the misunderstanding. In every instance, the questions arose after officers had attended some form of interdiction training presented by the same private police training group.
As explained to me and from what I was able to verify online, the training encouraged aggressive tactics, was heavily reliant on federal case law and was not state-specific. This led officers to believe that certain actions are legal when they are not. Using my home state as an example, the New York Court of Appeals interprets the law of street encounters under the New York Constitution much differently than the Supreme Court of the United States and other federal courts.
Officers have an individual responsibility to know the laws in their state, and they should know state law can vary dramatically from federal law. But instructors also bear responsibility to keep reinforcing that state law can vary. Further, effective search and seizure law training must emphasize the complexity of the law – it is, after all, probably the most complicated issue officers will encounter. It is easy to stand in front of police officers and talk tough, telling them what they want to hear. But such training simplifies a complex subject, spreading misunderstanding that can lead to unconstitutional actions. Put simply, it serves no one – the officer, the trainer or the community.
I typically start all my legal classes by telling the officers I am there to tell them what I believe they need to hear, based upon my training, education and experience, not what I think they want to hear.
Over the course of my career, I have attended countless training courses. From this experience I’ve identified two areas of concern about training that encourages aggressive tactics – the legal implications and the organizational culture implications. This is not to say that I do not want officers to be aggressive. I want them to go out and do their jobs and dig things up. Our communities deserve active yet balanced police officers.
But to be effective, they must understand the legal complexities. So, let us start with a brief discussion of the law.
The complexities of case law
One area of confusion around search and seizure law stems from the case of Kansas v. Glover (140 S. Ct. 1183 (2020)), decided by the Supreme Court of the United States (SCOTUS) in 2020. An officer ran a vehicle registration check and, while the registration itself was fine, the registered owner had a revoked driver’s license. The officer did not have any reason to know whether the driver was Glover, the registered owner. He pulled the car over; Glover was the operator and the officer arrested him. Glover challenged the stop, claiming the officer did not have reasonable suspicion to stop him.
For those of you who like to read case law, you should understand that the identification of the specific issue of law can be the most important part of the decision. When determining cases, courts first identify the legal issue and then apply that standard to the facts of the case.
The legal issue in Glover was whether the officer was justified in initiating an investigative traffic stop without knowing whether the current operator was the revoked owner.
The standard applied is that, under prior SCOTUS rulings, officers may conduct a brief investigative stop when they have a particularized and objective basis for suspecting a person of criminal activity. While a “hunch” cannot suffice, required reasonable suspicion is not as demanding as probable cause. Further, such a reasonable suspicion inquiry may fall short of 51% since to be reasonable is not to be perfect (Glover at 1188). The majority also went on to hold that inferences to support reasonable suspicion do not have to be based solely on police training and experience; they can be based on conclusions ordinary people would make.
So, we know the basic facts, the issue presented by the case, and the law that will be applied to bring it to a resolution. Eight justices ruled the officer had reasonable suspicion, based upon the observation of the vehicle being operated and the knowledge that the owner was revoked, which created a commonsense inference that Glover was probably driving the vehicle. Key to their holding was that the record was devoid of any information that would negate that inference. While this commonsense inference was enough for the majority, they went on to review the revocation process under Kansas law, finding that it reinforces the inference that individuals with a revoked license will keep driving since revoked persons have already shown a disregard for the law. Two of the eight justices filed a concurring opinion, relying heavily on the fact that Glover was revoked rather than suspended. A final justice dissented, finding the stop to be unreasonable.
There is another important takeaway from this decision. The court emphasized the narrow scope of their ruling. Here, the court allowed the stop based upon the lack of any information known to the officer to rebut the inference that Glover was driving. Additional facts, like the officer noticing prior to the stop that the driver does not match available information about the registered owner, would change the reasonable suspicion equation. The dissent pointed out that the state must provide the inference that the subject being stopped is violating a law. Determining reasonable suspicion based on a lack of evidence (lack of information to rebut the inference Glover was driving) flips the burden of proof; hence, the dissent.
So, regardless of what jurisdiction you are in, this decision is very limited, and officers should be wary of reading too much into it.
For officers who wish to know what impact Glover has on their actions in their state, you must know what standard your state courts will apply. Some states follow SCOTUS rulings very closely, while others, like New York, do not. Specifically, in New York, the Glover case provides the legal basis to stop a vehicle whose owner is suspended or wanted on a warrant only if you have objective articulable basis to believe the owner is the person driving the car at the time.
Let’s break that down. As noted above, and continuing to use New York as an example, we must look for the standard or law that applies under the rulings of the New York Court of Appeals. In People v Hinshaw (35 N.Y.3d 427 (2020)), a trooper ran a vehicle registration and received a notification of an impoundment, but the hit clearly stated no further action should be taken based solely upon the response. The trooper stopped the car anyway and ended up arresting Hinshaw for possession of marijuana and possession of a weapon.
The court set forth the requirements of what is needed under New York constitutional law: probable cause to believe the driver of a vehicle has committed a traffic infraction or reasonable suspicion to believe the driver or occupants have committed, are committing or are about to commit a crime. Note the New York standard specifically requires probable cause for traffic infractions, while the federal standard does not differentiate and only requires reasonable suspicion of a violation of law. This is a significant difference. The dissent in Hinshaw pointed out the federal standard and cited Glover, but this was outright dismissed by the majority, indicating the federal standard has not prevailed in state courts.
The essential elements of a probable cause determination consist of it being more likely than not that an offense was committed and that a specific person committed it. My guess is that the New York Court of Appeals would follow the dissent in Glover, requiring the officer to articulate some objective basis that the owner was operating the vehicle. Once you determine what your standard is, then you can determine whether Glover may or may not apply to you. Even if you feel it does, I caution you again on the narrow scope of the ruling. What if the registered owner was merely suspended instead of revoked?
Many of you who have read this far are probably now thinking, “This is complicated! How are our officers supposed to know what to do?” The answer, at least in part, can be found by the concept of legitimacy.
Organizational culture and “drift”
Legitimacy requires that actions and decisions of officers not only be legal, but also that they are the right thing to do. What is “right” needs to be heavily influenced by the chief or sheriff and set forth in clear organizational values. Are your people balancing the risk to everyone involved in an incident and acting in accordance with proper goals and objectives? The law is complicated, but a clear understanding of what is expected of officers can help them navigate a complex world. Is the sheer number of arrests and community contacts most important, or do you value quality over quantity? Do your people know what your values are?
Whenever possible, agencies need to develop their own subject matter experts in a variety of topics, with search and seizure law being one of them. This means you need to send the proper people to such training, people you can trust to keep learning after the training is over. Smaller agencies can rely on other agencies to share such trainers. Key to this, however, is vetting the training. This may not be possible until after the fact, but my suggestion would be to have your officers submit a summary in writing of what they learned and how they will apply it to their duties. Better yet, when possible, have someone from your command staff attend the training. Any good instructor will welcome that. I am always happy to see chiefs and other ranking members in my legal issues classes.
Earlier in this article I indicated the misunderstandings I encountered stemmed from one training group. But this group is not unique in encouraging officers to push the legal envelope in certain situations, and to ignore supervisors who try to stop them. Such blanket statements are wrong in so many ways. There are many times where supervisors need to be supervisors and if officers are not happy about it, that is too bad. Someday those officers may realize the sergeant probably did them a favor.
What you are looking for from training is content aligned with your established organizational values. Remember the five pillars of organizational risk management: People, Policy, Training, Supervision and Discipline. Training and supervision are critical elements that must support the other pillars. You may even learn new ways to look at current practices and modify your values appropriately. But, if the message of the training is to push the legal envelope all the time, be aggressive and search as many people and cars as possible, does that match the organizational values set forth by your administration? If so, do you reinforce it with quality assurance checks and emphasize quality over quantity?
There is a subtle but significant difference between an officer who goes out and, in good faith, uses their knowledge of the law to try their best to do things right and those who use their knowledge of the law to make things right. With the former, officers are doing the best they can in a complex world, and sometimes they are wrong. These are officers who use their knowledge of the law to guide their actions before and during community contacts. The latter officers, however, wield their knowledge of the law to make the circumstances fit what they believe is legally required. This “after the fact” application of the law can be inappropriate; fortunately, most officers do not engage in such behavior.
In a previous article on using AI to write police reports I discussed the concept of “drift” – a slow but incremental change in how things are accomplished. We know what the original rules were at some point, but for a variety of reasons, actual practices can drift to become the new norm. Because of the lack of obvious negative consequences, the practice continues, and upper management may not even be aware of it. Over time, the original rule is forgotten or intentionally ignored. Or to put it very simply: It is all good, until it isn’t.
“Drift” is not necessarily always bad, as it can point out practices that are improving the effectiveness of the agency and support organizational values. But a misunderstanding of case law that is brought back and shared with other officers can lead to negative drift. To avoid negative drift, supervisors need to review and question how and why officers are doing things. And frontline officers need to be taught to critically evaluate what they hear and read so they are not basing their actions on flawed logic.
Striking a balance
Our communities need officers who want to engage and do more than just answer calls for service, officers who are willing to make stops and arrests that are legitimate and based on articulable and specific facts. If something is not there, then it isn’t. In no court of law, regardless of jurisdiction, will an officer be able to testify they did something because someone vaguely “could have” or “could be.” That is not the world we work in. Learning to do things legitimately may be more difficult, but it is the only way we can hope to uphold the law, earn the trust of our communities and ultimately stay safer on the job.
Notes
- The training was the focus of a recent report from the New Jersey Comptroller. See https://data.nj.gov/stories/s/NJ-Comptroller-Police-Training-Report/qr2h-vn6y/ (last accessed on 2/14/24). Feedback I received from officers who attended a NY law specific course from the same company, as compared to generic interdiction-based courses, was on-point and helpful.
- A complete analysis of the case law is beyond the scope of this article. Readers should not interpret the content of this article as legal advice. Instead, it is strictly for illustrative and training purposes.
- It should be noted that the New York Criminal Procedure Law of New York section 70.10 uses “reasonable cause” instead of probable cause.
