I teach a class on search and seizure. I really like it when officers can give a brief explanation of the Fourth Amendment as it pertains to persons, places, papers, and effects, so one of the first questions I ask my students is, “In your own words, tell me what constitutes a search.”
I’m looking for an answer like, “A search occurs when we as agents of the government infringe or intrude upon an area that a person has a reasonable expectation of privacy in.”
Unfortunately, many students have difficulty articulating an answer that meets a Constitutional standard, and yet is still simple enough for a layperson to understand.
I try to impress upon our officers the importance of this since a good attorney will attack them on the stand with, “If you don’t know what a search is, how can we believe that you know how to properly execute one, or to know if a warrant was required?”
We officers are vested with an awesome amount of authority and power — we must be able to explain where we get it from. Ask your officers where they get their authority from and you’ll get a variety of answers — not all (or even many) of them good.
You’ll be told, “The Chief” or “The Sheriff” or — and I shudder to think — “I don’t know.”
The truth is, we derive our authority from the Federal and State Constitutions and State Law.
In Georgia for example, our authority comes from O.C.G.A. Title 35 Chapter 8, but most Georgia officers don’t know that.
We have to be able to answer, from the stand, questions like, “Where do you get your authority from?”
We need to be training our officers to break down complicated precepts of law and explain them in terms a jury can understand.
I don’t like hearing things like “Tier Two Encounter.”
That means nothing to a juror.
Our officers need to be able to explain what a brief detention is, that it is supported by articulable suspicion, and explain in lay terms what it is.
The best way I know of to accomplish this is to discuss these things as a matter of course when reviewing arrest reports with our subordinates.
Make them answer questions like:
1.) “What was your authority to detain this person?” (answer: “Articulable suspicion.”)
2.) “What is Articulable suspicion?” (answer: “As a police officer I receive training, which leads to knowledge and experience that non police officers don’t get. This training teaches me how to identify behavior that a normal person would not be suspicious of, but to me as a police officer it is. When I can explain what behaviors are suspicious and why, I am permitted to briefly detain the person I am suspicious of in order to conduct a cursory investigation. This investigation will allow me to determine if the person is committing a crime.”)
Insist they give complete answers that an officer can “teach” to a jury and give them an understanding of what we are talking about.
“Because I can,” is sometimes all an officer has to say when they’re asked why they did something.
That’s probably not even okay when two cops are examining one’s actions in an impromptu, informal after-action discussion, but it is DEFINITELY NOT okay in the witness box, in answer to an attorney’s question.
Supervisors, make sure your troops know how to explain why they did what they did. Teach them how to teach.
Do roll call training on where in the law they get their authority from. Ask them questions about their reports. And finally, if you don’t know the answers to these questions...get them and teach your officers.
Stay safe, and informed.
