Librar y of Congress Cataloging-in-Publication Data
Bridegam, Mar tha Ann.
Search and seizure/Mar tha Bridegam. p. cm.—(Point/counterpoint)
Includes bibliographical references and index.
ISBN 0-7910-7487-0 (hardcover)
1. Searches and seizures—United States—Juvenile literature. I. Title. II. Pointcounterpoint (Philadelphia, Pa.)
KF9630.B75 2005
345.73'0522—dc22
2005000350
All links and web addresses were checked and verified to be correct at the time of publication. Because of the dynamic nature of the web, some addresses and links may have changed since publication and may no longer be valid.
Foreword
Alan Marzilli, M.A., J.D.
Durham, Nor th Carolina
T h e d e b a t e s p r e s e n t e d i n P O I N T / C O U N T E R P O I N T a r e a m o n g t h e
m o s t i n t e r e s t i n g a n d c o n t ro ve r s i a l i n c o n t e m p o r a r y A m e r i c a n
s o c i e t y, b ut s t u dy i n g t h em i s m ore t h a n a n a c a d em i c a c t iv i t y. T h e y
a f fe c t e ver y c i t i ze n ; t h e y a re t h e i s s u e s t h a t to d ay ’ s l e a de r s de b a te
a n d to m or row ’ s w i l l de c i de . T h e re a de r m ay on e d ay p l ay a cen t r a l
ro l e i n re s o lv i n g t h em .
Why s t u d y b o t h s i d e s o f t h e d e b a t e ? I t ’ s p o s s i b l e t h a t t h e
re a d e r w i l l n o t ye t h ave f o r m e d a ny o p i n i o n a t a l l o n t h e s u b j e c t
o f t h i s vo l u m e b u t t h i s i s u n l i ke l y. It i s m o re l i ke l y t h a t t h e
re a d e r w i l l a l re a d y h o l d a n o p i n i o n , p ro b a b l y a s t ro n g o n e , a n d
ve r y p ro b a b l y o n e f o r m e d w i t h o u t f u l l e x p o s u re to t h e a r g u m e n t s
o f t h e o t h e r s i d e . I t i s r a r e t o h e a r a n a r g u m e n t p r e s e n t e d i n a
b a l a n c e d w a y, a n d i t i s e a s y t o f o r m a n o p i n i o n o n t o o l i t t l e
i n f o r m a t i o n ; t h e s e b o o k s w i l l h e l p to f i l l i n t h e i n f o r m a t i o n a l
g a p s t h a t c a n n e ve r b e avo i d e d . Mo re i m p o r t a n t , t h o u g h , i s t h e
p r a c t i c a l f u n c t i o n o f t h e s e r i e s : S k i l l f u l a r g u m e n t a t i o n re q u i re s a
t h o ro u g h k n ow l e d g e o f b o t h s i d e s t h o u g h t h e re a re s e l d o m
o n l y t wo, a n d o n l y by k n ow i n g w h a t a n o p p o n e n t i s l i ke l y to
a s s e r t c a n o n e f o r m a n a r t i c u l a te re s p o n s e .
Per h a p s m ore i m p or t a n t i s t h a t l i s ten i n g to t h e o t h er s i d e
s om e t i m e s h e l p s o n e to s e e a n op p on en t’s a r g u m en t s i n a m ore
hu m a n w ay. Fo r ex a m p l e , Si s te r He l e n Pre j e a n , o n e of t h e n a t i o n ’ s
m o s t v i s i b l e op p on en t s o f c a p i t a l p u n i s h m en t , h a s b e en de e p ly
a f fe c te d by h er i n te r a c t i o n s w i t h t h e f a m i l i e s of mu rder v i c t i m s .
S e e i n g t h e f a m i l i e s ’ g r i e f a n d p a i n , s h e u n der s t a n d s mu ch b e t ter
w hy p e op l e s u pp or t t h e de a t h p en a l t y, a n d s h e i s a b l e to c a r r y o ut
h er a dvo c a c y w i t h a g re a te r s en s i t iv i t y to t h e n e e d s a n d b e l i e f s of
t h o s e w h o do n o t a g re e w i t h h er. He r re l a t iv i s m , i n t u r n , l en d s
c re d i bi l i t y to h er wor k . D i s m i s s i n g t h e o t h er s i de o f t h e a r g u m en t
a s to t a l l y w i t h o ut m er i t c a n b e to o e a s y i t i s f a r m ore u s e f u l to
u n de r s t a n d t h e n a t u re of t h e con t rover s y a n d t h e re a s o n s w hy t h e
i s su e de f i e s re s o lut i o n .
T h e m o s t c o n t r o v e r s i a l i s s u e s o f a l l a r e o f t e n t h o s e t h a t
ce n te r o n a co n s t i t u t i o n a l r i g h t . T h e B i l l o f R i g h t s t h e f i r s t te n
a m e n d m e n t s to t h e U. S . Co n s t i t u t i o n s p e l l s o u t s o m e o f t h e
m o s t f u n d a m e n t a l r i g h t s t h a t d i s t i n g u i s h t h e g o v e r n m e n t a l
s y s te m o f t h e Un i te d S t a te s f ro m t h o s e t h a t a l l ow f e w e r ( o r o t h e r )
f r e e d o m s . B u t t h e s p a r s e l y w o r d e d d o c u m e n t i s o p e n t o i n t e r -
p r e t a t i o n , a n d c l a u s e s o f o n l y a f e w w o r d s a r e o f t e n a t t h e h e a r t
o f n a t i o n a l d e b a t e s . T h e B i l l o f R i g h t s w a s m e a n t t o p r o t e c t
i n d i v i d u a l l i b e r t i e s ; b u t t h e n e e d s o f s o m e i n d iv i d u a l s c l a s h w i t h
t h o s e o f s o c i e t y a s a w h o l e , a n d w h e n t h i s h a p p e n s s o m e o n e h a s
to d e c i d e w h e re to d r aw t h e l i n e . T h u s t h e Co n s t i t u t i o n b e co m e s
a b a t t l e g ro u n d b e t w e e n t h e r i g h t s o f i n d iv i d u a l s to d o a s t h e y
p l e a s e a n d t h e r e s p o n s i b i l i t y o f t h e g o v e r n m e n t t o p r o t e c t i t s
c i t i z e n s . T h e F i r s t A m e n d m e n t ’ s g u a r a n t e e o f “ f r e e d o m o f
s p e e c h , ” f o r e x a m p l e , l e a d s to a n u m b e r o f d i f f i c u l t q u e s t i o n s .
S o m e f o r m s o f e x p re s s i o n , s u c h a s b u r n i n g a n A m e r i c a n f l a g , l e a d
to p u b l i c o u t r a g e b u t n e ve r t h e l e s s a re s a i d to b e p ro te c te d by
t h e F i r s t A m e n d m e n t . O t h e r t y p e s o f e x p re s s i o n t h a t m o s t p e o p l e
f i n d o b j e c t i o n a b l e , s u c h a s s e x u a l l y e x p l i c i t m a te r i a l i nvo lv i n g
c h i l d re n , a re n o t p ro te c te d b e c a u s e t h e y a re co n s i d e re d h a r m f u l .
T h e q u e s t i o n i s n o t o n l y w h e re to d r aw t h e l i n e , b u t h ow to d o
t h i s w i t h o u t i n f r i n g i n g o n t h e p e r s o n a l l i b e r t i e s o n w h i c h t h e
Un i te d S t a te s w a s b u i l t .
T h e B i l l o f R i g h t s r a i s e s m a ny o t h e r q u e s t i o n s a b o u t i n d i -
v i d u a l r i g h t s a n d t h e s o c i e t a l “ g o o d . ” Is a p r aye r b e f o re a h i g h
s c h o o l f o o t b a l l g a m e a n “ e s t a b l i s h m e n t o f re l i g i o n ” p ro h i b i te d by
t h e F i r s t A m e n d m e n t ? D o e s t h e S e c o n d A m e n d m e n t ’ s p r o m i s e
o f “ t h e r i g h t t o b e a r a r m s ” i n c l u d e c o n c e a l e d h a n d g u n s ? I s
s t o p p i n g a n d f r i s k i n g s o m e o n e s t a n d i n g o n a co r n e r k n ow n to b e
f re q u e n te d by d r u g d e a l e r s a f o r m o f “ u n re a s o n a b l e s e a rc h a n d
s e i z u re ” i n v i o l a t i o n o f t h e Fo u r t h A m e n d m e n t ? A l t h o u g h t h e
n i n e - m e m b e r U. S . S u p r e m e C o u r t h a s t h e u l t i m a t e a u t h o r i t y
i n i n t e r p r e t i n g t h e C o n s t i t u t i o n , i t s a n s w e r s d o n o t a l w a y s
s a t i s f y t h e p u b l i c . Wh e n a g ro u p o f n i n e p e o p l e s o m e t i m e s by a
f i v e - t o - f o u r v o t e m a k e s a d e c i s i o n t h a t a f f e c t s t h e l i v e s o f
h u n d r e d s o f m i l l i o n s , p u b l i c o u t c r y c a n b e e x p e c t e d . A n d t h e
c o m p o s i t i o n o f t h e C o u r t d o e s c h a n g e o v e r t i m e , s o e v e n a
l a n d m a r k d e c i s i o n i s n o t g u a r a n te e d to s t a n d f o re ve r. T h e l i m i t s
o f co n s t i t u t i o n a l p ro te c t i o n a re a lw ay s i n f l u x .
T h e s e i s s u e s m a k e h e a d l i n e s , d i v i d e c o u r t s , a n d d e c i d e
e l e c t i o n s . T h e y a r e t h e q u e s t i o n s m o s t w o r t hy o f n a t i o n a l d e b a t e ,
a n d t h i s s e r i e s a i m s t o c o v e r t h e m a s t h o r o u g h l y a s p o s s i b l e .
E a c h vo l u m e s e t s o u t s o m e o f t h e ke y a r g u m e n t s s u r ro u n d i n g a
p a r t i c u l a r i s s u e , e ve n s o m e v i e w s t h a t m o s t p e o p l e c o n s i d e r
e x t r e m e o r r a d i c a l b u t p r e s e n t s a b a l a n c e d p e r s p e c t i ve o n t h e
i s s u e . E xc e r p t s f ro m t h e r e l e v a n t l aw s a n d j u d i c i a l o p i n i o n s a n d
r e f e r e n c e s t o c e n t r a l co n c e p t s , s o u r c e m a t e r i a l , a n d a d vo c a c y
g ro u p s h e l p t h e re a d e r t o e x p l o r e t h e i s s u e s e ve n f u r t h e r a n d t o
r e a d “t h e l e t t e r o f t h e l aw ” j u s t a s t h e l e g i s l a t u r e s a n d t h e co u r t s
h ave e s t a b l i s h e d i t .
I t m a y s e e m t h a t s o m e d e b a t e s s u c h a s t h o s e o v e r c a p i t a l punishment and abortion, debates with a strong moral component
w i l l n e v e r b e r e s o l v e d . B u t A m e r i c a n h i s t o r y o f f e r s n u m e r o u s
e x a m ples of controversies that once seemed insurmountable but now are effectively settled, even if only on the surface. Abolitionists
m e t w i t h w i d e s p r e a d r e s i s t a n c e t o t h e i r e f f o r t s t o e n d s l ave r y,
a n d t h e co n t ro ve r s y o ve r t h a t i s s u e t h r e a t e n e d t o c l e ave t h e
n a t i o n i n two; but today public debate over the merits of slaver y
wo u l d b e u n t h i n k a b l e , t h o u g h r a c i a l i n e q u a l i t i e s s t i l l p l a g u e t h e nation. Similarly unthinkable at one time was suffrage for women
a n d m i n o r i t i e s , b u t t h i s i s n ow a m a t t e r o f co u r s e . D i s t r i b u t i n g
i n f o r m a t i o n a b o u t c o n t r a c e p t i o n o n c e w a s a c r i m e . S o c i e t i e s
c h a n g e , a n d a t t i t u d e s c h a n g e , a n d n e w q u e s t i o n s o f s o c i a l j u s t i c e a r e raised constantly while the old ones fade into irrelevancy.
Wh a te ve r t h e ro o t of t h e co n t rover s y, t h e b o o k s i n P O I N T /
C O U N T E R P O I N T s e e k to ex p l a i n to t h e re a d er t h e or i g i n s of t h e de b a te , t h e c u r re n t s t a te of t h e l aw, a n d t h e a r g u m en t s on b o t h
s i d e s . T h e g o a l o f t h e s e r i e s i s t o i n f o r m t h e r e a d e r a b o u t t h e
i s s u e s f a c i n g n o t o n ly Am er i c a n p o l i t i c i a n s , but a l l of t h e n a t i o n ’ s
c i t i z e n s , a n d t o e n c o u r a g e t h e r e a d e r t o b e c o m e m o r e a c t i v e l y
i nvo lve d i n re s o lv i n g t h e s e de b a te s , a s a vo te r, a con ce r n e d c i t i zen ,
a j o u r n a l i s t , a n a c t iv i s t , o r a n e l e c te d of f i c i a l . D em o c r a c y i s b a s e d
on e d u c a t i on , a n d e ver y voi ce co u n t s s o e ver y op i n i on mu s t b e
a n i n for m e d on e .
T his volume examines the often difficult balance b e tween law enforcement and civ il lib er t ies. It covers the topic of search and seizure, gener al ly meaning searching p eople, places, and vehicles; seizing prop er t y ; and ar rest ing or other w ise de taining p eople. T he U.S. Const itut ion places limits on search and seizure, but the scop e
o f t h e s e l i m i t s i s a f r e q u e n t t o p i c o f p u b l i c a n d l e g a l
d d i
t h e l aw o f s e a rc h a n d s e i z u re , t h i s vo l u m e e x a m i n e s t h e a r g u m e n t s o f c i v i l l i b e r t a r i a n s a n d p r o p o n e n t s o f “ l aw a n d o r d e r ” r e l a t i n g
t o c u r re n t co n t rove r s i e s . T h e m a j o r to p i c s cove re d a re e xc l u d i n g
e v idence on “technicalities,” r acial profiling , and police misconduct. Sp ecial attent ion is g iven to the impac t of the “War on Ter ror ” on search and seizure law.
S earch and S eizure:
A
Brief Review
This bo ok explores some cont roversies sur rounding official i nve s t i g a t i o n s a n d a r re s t s i n t h e Un i te d S t a te s . It s t i t l e
comes from the Four th Amendment to the U.S. Const itut ion, w hich prov ides:
The r ig ht of the people to be secure in their persons, houses, p a p e r s a n d
a
d seizures, shall not be v iolated, and no war rants shall issue, but upon probable cause, suppor ted by oath or affirmation, and par ticularly descr ibing the place to be searched, and the persons or things to be seized.
In the amendment’s formal eig hteenth-centur y language, the word se izure means both the seizure of persons (detaining or
arresting people) and the seizure of things (collecting ev idence or impounding proper t y).
T he Const itut ion, including the Four th Amendment, is the s u p re m e l aw o f t h e Un i te d S t a te s , s o t h e Su p re m e Co u r t’s inter pre tat ion of this amendment has a t remendous effec t on p olice conduc t e ver yw here in the count r y. It is not the only imp or tant law affe c t ing search and seizure, howe ver, nor is it the only one addresse d in this b o ok. More gener al ly, the de bates analyze d here concer n the e vents that dr aw a p erson into the cr iminal just ice pro cess from the p olice decision to fo cus on a par ticular place, offense, or suspect, to investigations and ar rests, to the sor t of cour t ro om ob jec t ions that are used to al le ge il le g al b ehav ior by the p olice themse lves. Readers w il l nee d to l o o k e l s e w h e re f o r t h e e q u a l l y i m p o
of p ro s e c
sentencing , impr isonment, sup er v ised release pro g r ams, and the e ventual re tur n of ex-conv ic ts to so cie t y.
This book is not a cr iminal defense manual, nor is it intended as adv ice on how to handle an actual encounter w ith police. Anyone who is being treated w ith suspicion in a real cr iminal investigation should consult a competent attor ne y as soon as possible if not on a pr ivate basis, then throug h a nonprofit or public defender program before making any decisions or statements.
In this book, criminal justice issues are presented in terms of legal policy, histor y, and politics, with the goal of helping readers par ticipate more knowledgeably in public discussion of the role of police agencies. Such discussion has become urgent in a countr y that, as of 2001, had more than 2 million people incarcerated1 and that, since the September 2001 terrorist attacks, has intensely debated whether it is consistent w ith democratic citizenship to increase the powers of police and securit y agencies.
The street-level realities of U.S. criminal procedure can seem to mock the elegant and seemingly idealistic pronouncements
about indiv idual liber t y that restrain the law of the United States th ro u g h t h e B i l l o f R i g h t s , t h e f i r s t te
Co n s t i t u t i o n Po l i c e d
h
b e en, r un by philosopher-statesmen in p owdered w ig s. The practical application of the criminal law was a scruffy, frequently unfair business at the t ime the Unite d States was founde d.
Cr iminal just ice st il l is scr uffy and fre quently unfair, althoug h long years of protest and negotiation have gentled some aspects of the pro cess.
What does it mean for police and secur it y agencies to obe y the Constitution in their treatment of individuals under criminal su s p i c i o n ? Civ i l r i g h t s l aw
r g u
t h
e U. S . c r i m i n a l justice establishment has ne ver met its dut y to handle suspects as thoug h the y were truly presumed innocent until proven guilt y. Advocates for a “ law and order” perspective often argue that too much concern for accused par ties dur ing the past four decades has neg lected the r ig hts of cr ime v ictims and allowed dangerous people to walk free.
Advocates for “ law enforcement” by which is gener ally me a n t t h e e f f i c i
v io l a t i o
Constitution is the supreme law of the land. Conversely, advocates w ho fe el that the U.S. le g al system is sta cked ag ainst p o or and minor it y indiv iduals have successful ly built e g alitar ian cases on that ver y system’s founding do cuments. Lib er als w ho have b e en s tere o t y p e d a s w a n t i n g to l e ave t r a d i t i on b e h i n d find themse lves invoking the 1791 r at ificat ion of the Bil l of Rig hts to defend constitutional restr aints on police conduct that the Supreme Cour t only imposed per vasively in the 1960s. Conser vatives, stereot y ped as opposing “ big gover nment,” can find themselves defending unprecedented police intr usions into pr ivate life.
The tr aditions of professional state and local policing developed in the United States w ithout much reference to the Bill of Rig hts, which was at first seen as apply ing only to feder al
Four teenth Amendment that r ig hts to “due process of law” and “equal protection of the laws” were for mally applied to state and local officials’ conduct. It took longer for due process and equal protection r ig hts to have real effects on cr iminal suspects’ r ig hts. Cour t objections about local police v iolations of constitutio n a l r i
twentieth centur y, and it was only about 40 years ago that the real head-on collision between daily police pr actices and cour t inter pretations of the Bill of Rig hts began. The re ver ber ations from this collision which is sometimes remembered as the cr i m i n a l pro ce du re re vo lut i on a re s t
felt in cour trooms around the countr y.
T h e Wa r ren Co u r t t h e Su
Chief Justice Earl War ren in the 1960s issued inter pretations of a 200-year-old document that imposed new restr ictions on long-accepted police methods in a manner that some police officials and their suppor ters saw as a break w ith tr adition. Each side, in its way, thus claimed to be upholding time-honored ideas of justice, and, in a way, each side was r ig ht.
a dvo cates over the lessons of the Amer ican past an argument t h a t h a s i m p or t a n t pre s en t - d ay con s e qu en ce s . T h e w h o l e U. S . s ys tem o f gove r n m en t i s , a f te r a l l , re s t r a i n e d by t h e Su pre m e
Co u r t’s i n ter pre t a t i o n of t h e Con s t i t ut i o n . T h e f ut u re of a ny pre s en t - d ay c r i m i n a l su s p e c t m ay d e p en d o n a n a r g u m en t
a b o u t t h e i n ten t i on s of m en 2 0 0 ye a r s de a d . It m ay e qu a l ly
de p en d on a r g u m e n t s a b o ut t h e ex ten t to w h i ch t h e l i ter a l i n te n t i o n s o f t h e m e n w h o w ro te t h e Co n s t i t u t i o n s h o u l d
gover n a co u n t r y t h a t , s i n ce t h o s e fo u n d i n g ye a r s , h a s en d e d
s l aver y, ex p a n d e d vo t i n g r i g h t s , mu l t i p l i e d i t s p op u l a t i on a n d ter r i tor y, a cqu i re d p rof e s s i on a l p o l i ce force s , a n d a b s or b e d
t h o u s a n d s o f i nve n t i on s , i n clu d i n g ph o to g r a p hy, te l e ph on e s , w iretaps, automobiles, speed traps, air travel, cocaine, automatic
we a p on
a n d t h e In ter n e t .
i
i
, D NA t y p i n g , p s ych i a t r y,
Lear ning what the Bill of Rig hts meant at its r atification in 1791, together w ith its var ious meanings over the years since then, can be impor tant to modern constitutional inter pretation. A fur ther step back into the histor y of the Eng lish legal system and its application to the Nor th Amer ican east coast throug h colonial gover nments in the se venteenth and eig hteenth centur ies, when much of the United States’ legal system was created, can also help.
T here is not much space here to discuss histor y, as this b o ok is dedicated to cur rent cont roversies, but present-day arguments can frequently be reinforced by citing similar situations in the past or by using histor ical backg round to explain how we got where we are today. Supreme Court justices frequently consider what the Founding Fathers mig ht have thoug ht of a present-day situation, and scholarly debate about the Four th Amendment in par ticular has taken a strong tur n into the realm of h i s tor i c a l i
a m o n g l
Constitution, who lived before full-time professional police forces were invented, thoug ht that there should be any such thing as a search w ithout a war r ant althoug h today, fewer searches are conducted w ith war r ants than w ithout.2
Eng lish legal histor y is one of the strongest influences on the present-day U.S. system. The idea that ordinar y people have legal r ig hts owes a lot to medie val notions of “Eng lish liber t y ” and par ticularly to King John’s Mag na Car ta ag reement of 1215, which first established that a law could be more impor tant than the king . 3 Ideas about the legal r ig hts of unpopular or powerless people developed fur ther in Eng land and its Amer ican colonies dur ing the se venteenth and eig hteenth centur ies under the influence of political and relig ious conflicts. The debates of those days are still cited in present-day law. The famous 1966 case of Miranda v. Ar izona, which says that police must remind
ar rested people of their r ig ht to remain silent and their r ig ht to consult a lawyer, refers back to the tr ial of a political activ ist na m e d Jo h n L i l b u r n i n E
persuaded Eng land’s Parliament to ban the notor ious Star Chamber pr actice of forcing suspects to testify against themselves. Likew ise, Miranda banned the twentieth-centur y practice of questioning ig nor ant cr iminal suspects w ithout telling them that the y could refuse to answer.4 The Four th Amendment der ives almost directly from disputes over political pamphlet seizures in Eng land in the 1760s, especially in the case of Wilkes v Wood, and indiscr iminate searches of merchants’ buildings by customs tax officials in colonial Massachusetts, which were challenged in the 1761 Wr its of Assistance case.5
• Should arguments about something that happened in 1761 affec t the freedom of present-day criminal suspec ts?
had been less clearly implied in Eng lish law : The people are always entitled to cer tain fundamental r ig hts that no person or g roup in government may v iolate, either by abuse of power indiv idually or by making unjust laws. The Four th Amendment and the rest of the Bill of Rig hts had little to do w ith the actual t
t
i
n
l s c r u t i ny. D u r i n g t h i s t i m e , p ro f e s s i o n a l U. S . p o l i c e f o r c e s replaced less organized g roups of watchmen and developed ba s i c m e t h o d s a n d i n s t i t ut i on a l c u l t u re s . T h i s i s n o t to s ay t h a t of f i ce r s i n t h e s e fo rce s f a i l e d to s er ve ju s t i ce , bu t r a t h e r to suggest that the y at first handled suspects less for mally, under few e r w r i t te n r u l e s , a n d w i t h m u c h m o re p r a c t i c a l a u t h o r i t y to make ar rests and much less r isk of hav ing their decisions re ver s e d i n co u r t . 6 It h a s , h owe ver, b e en a r g u e d t h a t s om e police depar tments’ institutional cultures were influenced by t h e ex p l i c i t ly r a c i s t t r a d i t i on of “ s l ave p a t ro l s , ” w h i ch were
g roups of white proper t y ow ners, required to ser ve by local law, who searched roads and slave quar ters at nig ht to discourage rebellion or escape 7
A big step toward the application of the Bill of Rig hts to e ver yday law enforcement happened w ith the passage of the Four teenth Amendment as par t of a g roup of post–Civ il War laws and constitutional amendments intended to mend the countr y and confir m the citizenship r ig hts of former slaves. Its ke y Section I prov ides:
All persons born or naturalized in the United States, and subject to the jur isdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law w hich shal l abr idge the pr iv ileges or i m m u n i t i e s o f c i t i z e n s o f t h e
l l any State depr ive any p erson of life, liber t y, or prop er t y, w ithout due process of law ; nor deny to any person w ithin its jur isdiction the equal protection of the laws.8
T h e “du e p ro ce s
Four teenth Amendment became impor tant conduits that the Supreme Cour t used to g ive pr actical local effect to the Bill of Rig hts. This tr ansition star ted slowly. Only scattered Four teenth Amendment r ig hts decisions such as Yick Wo v. Hopkins which established that the Four teenth Amendment entitled “all persons ” in the United States regardless of their immig r ation or citizenship status, to “due process of law” and the “equal protection of the laws,” 9 appeared in the nineteenth centur y. ( This amendment, howe ver, does not g ive precisely equal r ig hts to all noncitizens the y have fewer r ig hts as their ties to the United States decrease.10 )
In cr iminal law, a few isolated cases began a slow process of Supreme Cour t reasoning that led up to a r adically new conclusion: that the Bill of Rig hts, first v iewed as a restr aint on the powers of the feder al government, oug ht to affect the behav ior
of l o c a l p
i n e
i
i
s . 11 Im p or t a n
d m a r k s in this process included the famous “Scottsboro Boys” case, in which the Supreme Cour t found that a group of poorly educated young black men had been conv icted of r ape w ithout a fair chance to present an effective defense.12
In the 1960s, the famous War ren Cour t began to apply cr iminal procedure protections in the Bill of Rig hts to people under ar rest or investigation by local police. The result was a jolting collision between long-standing police pr actices and the newly inter preted language of the Constitution.
For the Four th Amendment, the turning point came in 1961, when the Supreme Cour t, then in its active years under Chief Justice Warren, ruled in the illegal-search case of Mapp v. Ohio that the exclusionar y rule applies to lo cal p olice searches. T his r ule, first applied to feder al law enforcement in the 1914 case of Weeks v. United States, requires that e v idence ob tained by illegal search must be throw n out of cour t (“suppressed”).13 O t h e r ke y Wa r r e n C
of criminal defendants (people on trial for crimes) included Gideon v. Wainw r ig ht, which solidly established the r ig ht of p o or p eople charge d w ith cr imes to fre e le g al representat ion,14 and Miranda v. Ar izona,15 w hich requires p olice to deliver the famous war ning that a dv ises susp e c ts of the r ig ht to remain silent under p olice quest ioning and to consult an attor ne y.
The Warren Cour t continued to establish many more protections for suspects’ r ig hts dur ing their ar rest, questioning , detention, and tr ial In reaching these and other decisions, the Cour t slowly gave major it y approval to the doctr ine of selective incor por ation, which holds that par ts of the Bill of Rig hts are “incor por ated” in the Due Process Clause of the Four teenth Amendment and therefore apply to “state action” which, as now understood, means the behav ior of both state and local officials. With respect to cr iminal procedure, the Cour t essentially found that people being ar rested or tr ied by state or local officials were entitled to most protections of the Four th, Fifth,
Sixth and Eig hth Amendments the r ig ht against unreasonable search and seizure; the r ig ht to refuse to be a w itness against oneself; the r ig hts to a “speedy and public” tr ial by jur y, w ith the r ig ht to call one ’ s ow n w it nesses and confront one ’ s accusers, and to have a lawyer ; and finally, the r ig ht to be free of “ cr uel and unusual punishment.”
Search and seizure law also went throug h a mo der nizat ion pro cess in the twent ie th centur y, most notably under the influence of Prohibit ion. This nat ional ban on alcoholic b e ver ages, w hich lasted from 1920 throug h 1933, increased both organized cr ime and official searching for cont r aband Around the same t ime, the automobile and the telephone were b ecoming w idely available; Prohibit ion g ang sters b e g an to use them in new ways that the law had to adapt to hand le. 16
Two impor tant search and seizure cases related directly to Prohibition were Carroll v. U.S. and Olmstead v. U.S. The Carroll case, which is still on the books and cited as precedent, found that police who stopped a know n bootlegger’s car on gener al suspicion did not need a war r ant to search the vehicle ( The car did in fact have 69 quar ts of bootleg whiske y in its upholster y.)
From the Bench
Justice Brandeis, dissenting in Olmstead v. U.S., 1928
l
c h u s to b e m o s t o n o u r g u a r d to p ro te c t l i b e r t y w h e n t h e g ove r n m e nt ’s p u r p o s e s a re b e n e f i ce nt . M e n b o r n to f re e d o m a re n at u ra l l y a l e r t to re p e l i nva s i o n o f t h e i r l i b e r t y by e v i l - m i n d e d r u l e r s. Th e g re ate s t d a n g e r s to l i b e r t y l u r k i n i n s i d i o u s e n c ro a c h m e nt by m e n o f ze a l , we l l - m e a n i n g b u t w i t h o u t u n d e r s t a n d i n g . . .
Source: Olmstead v. U.S., 277 U.S. 438 (1928)
The Olmstead case is no longer in effect and is interesting as an example of the legal distor tions that sometimes develop from conflicting v iews of a new technolog y as, in the present day, officials and leg islators have var y ing ideas about Inter net pr ivacy. This case concerned a feder al bust of a massive Seattle bootlegg ing oper ation that had been illegally selling up to 200 cas e s of Ca n a d i a n l i qu o r p er d ay. Ac t i n g w i t h o ut a w a r r a n t , federal agents tapped four telephone lines that the operation used to discuss not only liquor sales, but also, apparently, Olmstead’s cor r upt dealings w ith Seattle police. The eavesdropping led to m o r e t h a n 7 2 i n d i c t m e n t s ( Un d e r t h e F i
h A m e n d
, feder al prosecutions for ser ious offenses can be broug ht only after g r and jur y indictment.) The Cour t major it y ar r ived at a decision that may now seem absurd: that, because the agents who tapped Olmstead’s phone lines had not physically entered his proper t y, the y had not v iolated his Four th Amendment r ig hts. In dissent from the major it y opinion, Justice Louis D. Br andeis w rote a famous protest ab out the Bil l of Rig hts as protector of “the r ig ht to be let alone the most comprehensive of r ig hts and the r ig ht most valued by civ ilized men. ”
Much later after the official p olit ical eavesdropping of the McCar thy 1950s, among other things Justice Br andeis’s v iew was endorsed by Katz v. U.S.17 The present r ule is defined by Katz: “the Four th Amendment protects people, not places.” In the Katz case in par ticular, the Supreme Cour t found tha t t h e d e f e n d a n t , i n p l a c i n g a c a l l f ro m a p h o n e b o o t h , h a d a “ reasonable exp ec tat ion of pr ivacy” and law enforcement officials were bound to honor it. This did not mean that police were flatly bar red from eavesdropping on Katz’s calls, but it did mean that the eavesdropping would have been legal only if a mag istr ate had first issued a search war r ant based on probable cause to suspect Katz of specific cr imes.
Katz’ s impor tance for w iretapping has since been eclipsed by feder al leg islation.18 Howe ver, this case remains impor tant in other constitutional criminal law for its broader rule that people
have Four th Amendment r ig hts no matter where the y are at home, in a phone booth, or walking dow n the street.
As w ith most Supreme Cour t cr iminal law decisions, the Mapp, Gideon, Miranda, and Katz r ulings were based on appeals broug ht by people who had been conv icted of cr imes in local tr ial cour ts. T he decisions in their favor were not stor yb o ok v ictor ies of good over e v il. Instead, the y illustr ated the more complex notion that a person who is ver y possibly guilt y of a cr ime can also be a v ictim of injustice.
Clarence Gideon was e ventually cleared of his cr ime the stor y is told by Anthony Lew is’s classic book Gideon’s Tr umpe t 19 and in the 1980 film of the same name. On the other hand, the p olice who searched Dollree Mapp’s house really did find pornog r aphy, Er nesto Mir anda did confess to kidnapping and r ape, and Katz was phoning in illegal gambling bets.20 Yet in all those cases the Cour t ruled that, because the police did not play fair, the defendant should go free.
Mapp and Katz worked on the principle of a uniform Four th Amendment “exclusionar y rule,” meaning that if a search violated a defendant’s r ig hts, any e v idence it pro duce d could not b e considered at trial. In practice, this meant that if the police did not play fair, even a guilt y defendant should go free—a decision that has upsetting consequences, althoug h it does enforce good police behav ior by appealing to police officers’ desire to keep criminals behind bars. Mapp and Katz (along w ith many other cases) established the exclusionar y rule for v iolations of Four th Amendment search and seizure rig hts. Miranda had a similar effect w ith respect to the Fifth Amendment rig ht against selfincrimination: It held that, if a confession was unconstitutionally obtained, the results cannot be considered in cour t.
The War ren Cour t is stereot y ped as liber al, but another g reat 1960s landmark case is par t of the stor y, and this one favo r s p o l i ce a n d p ro s e c u to r s , n o t d e f e n d a n t s : t h e 1 9 6 8 c a s e of Ter r y v. Ohio.21 An exper ienced Cle veland police detective named McFadden spotted three men who seemed str angely
inte re s te d i n a p a r t i c u l a r s to re w i n d ow. He s u s p e c te d t h a t the y were “casing a job” planning to rob the store. In a few mom en t s of br ave p o l i ce wor k , h e con f ron te d t h e m en by himself, managed to fr isk them all for weapons by patting their clothing , and took away guns that his pat search discovered in two of the men ’ s pockets.
The Supreme Cour t decided that this search and seizure was proper, and it announced one of the most impor tant r ules in cr iminal law : An officer who has a “reasonable suspicion” of cr iminal behav ior in a street situation that does not allow time to obtain a search war r ant may conduct an “investigator y stop” of a suspect. If an officer making this kind of stop reasonably fears that the suspect may be ar med, the officer may fr isk or “pat search” the suspect for weapons and may seize as evidence any weapons found in this way.
An ar rest is only proper if police belie ve that, “ more likely than not,” the suspect has committed the alleged offense, but a Ter r y stop is all r ig ht e ven if there is less than an e ven chance that the suspect has done something w rong 22 Today, Terr y stops are an impor tant daily par t of police patrol work frequently w ith no record created. A skilled officer can make a Ter r y stop so casual ly that the susp ec t do esn’t realize a pro cess that has for mal rules and extremely impor tant consequences has begun.
Now, 40 years after Mapp v. Ohio, cour ts have softened the War ren Cour t’s str ict limits on police pr actice. As the War on Ter ror ism empowers police agencies in the name of protecting against catastrophic threats, the debate over police powers and pr actices has intensified. The main present-day arguments about the Four th Amendment involve defining the circumstances when a police officer may “reasonably” search a person, car, bag , or building w ithout specific official per mission and when the officer has to leave the suspect alone until or unless a judge issues a war r ant to allow the search.
The Four th Amendment, in gener al, still stands for the idea that the police may not search people or break into their houses
for unjust reasons or for no reason at all. The basic r ule is that people are to be left alone. Searches and seizures are allowed only as exceptions to that r ule People do not automatically have to explain themselves to the government. If it bothers indiv iduals, the government owes them and the public an explanation. What happens in pr actice is, of course, another matter. Often, it has more to do w ith police tr aditions de veloped in the days be f o re t h e Wa r re n C o
to center stage. For the past 20 years and more, cour ts have been receptive to arguments that the War ren Cour t due process precedents restr ain police behav ior too harshly The cour ts have now moved some distance in the opposite direction.
With the 2001 inaugur ation of the U.S. War on Ter ror ism, fur ther p er missions were g r anted to p olice forces and invest ig a t ive a g en c i e
con s e qu en t ly h a s s h a r p e n e d ove
t ye a r s . T h e w h o l e search and seizure debate is too intr icate to summar ize entirely in this book, but the chapters that follow present some basic pro and con points on the legal scope of police powers, the police and secur it y pr actice of profiling , and the extent to which police conduct confor ms to the requirements of a democr atic societ y.
Summar y
This book considers “search and seizure” as broadly understood in the United States under the Four th Amendment and other laws. It concer ns the early stages of the cr iminal justice process, from initial police suspicion to the arrest and charg ing decisions. It is not a manual for those facing cr iminal charges or other legal trouble, but an aid to discussion.
The laws of the United States that affect suspects’ r ig hts have a histor y der ived in large par t from older Eng lish law and disputes that arose shor tly before the Amer ican Re volution. Impor tant ideas that der ive from this histor y are that cer tain
r ig hts outweig h any indiv idual’s author it y and that gover nment has to justify any intrusion on people’s r ig hts. Major twentiethcentur y changes in the law of search and seizure included the Supreme Cour t’s slow ar r ival at the notion that the Four teenth Amendment applied the Bill of Rig hts to restr ain the behav ior of state and local officials and decisions made dur ing Prohibition to keep up w ith expanding cr ime and new technolog y. The “due process re volut ion” of the 1960s expanded many r ig hts for cr iminal suspects, notably in the cases of Mapp, Gideon, Miranda, and Katz, but in Terr y the same War ren Cour t granted the traditional power of police officers to detain people for br ief investigation w ithout e v idence of any cr ime committed. Since the 1960s, the trend has been toward g reater powers for police and prosecutors a pattern that has intensified since the September 2001 ter ror ist attacks.
“
Technicalities”
in Criminal Trials Protect Everybody’s Freedoms
When the police came to v isit Dollree Mapp one day in 1957, the y were investigating a bombing of the home of Don King the same Don King who later became a famous boxing promoter. The officers belie ved that King , Mapp, and the chief suspect in the attack were involved in illegal gambling , and they saw a car in Mapp’s dr iveway that belonged to another reputed gambler who mig ht help them find the suspect In fact, the car ’ s ow ner was not in Mapp’s house. When the police knocked, Mapp called her lawyer, who adv ised her not to open the door unless the y had a search war r ant. The police broke in. When the y showed a paper that the y claimed was a war r ant, she g r abbed it. The y w restled it back. (It was not a real war r ant, only an affidav it.) The police also tw isted her hand, handcuffed her, and tore up the entire duplex where she lived, searching for any thing illegal whatsoe ver. Their “fishing expedition” did find
an excuse for ar resting her : The conv iction that she eventually appealed to the Supreme Cour t was based on some dir t y books and a r ude doodle, par tly found in the basement, which she said had been left by a former tenant.23
Dollree Mapp does not sound like an especially solid citizen but since when is being a nonsolid citizen a crime punishable by invasion of one ’ s home by the police? The true motives of the officers who turned her house upside down cannot be known, but it is possible to guess that they meant to “punish” her for insisting on her rights and refusing to open the door. What if Mapp’s two-to-seven-year prison term for obscenity had been allowed to stand, despite a finding that the search was a violation of her rights? Would the officers then have learned a lesson about respecting people’s rights? If Mapp’s home was searched with impunity one day, would anything but tidier personal reputations prevent other people’s homes from being searched similarly? Is the rule of law operating properly when it is personal reputation, not law, that protects a person from being mistreated?
When the “exclusionar y rule” weakens, so do ever yone’s rights.
from government intrusion tend to be under-respected because unpopular people are the most likely to asser t them. The Four th Amendment, esp ecial ly, is discusse d most often in cr iminal cour trooms where a defendant is tr ying to beat a criminal charge by arguing that some piece of e v idence that tends to prove a crime, for example, a bag of drugs found in a car, should be throw n out of cour t because it was seized in an unconstitutional search. This kind of company makes the Four th Amendment itself sound like something vaguely criminal—a sneaky excuse used by shift y people who always have something to hide. From another point of v iew, the Four th Amendment has great dignit y : It is one of the main differences between a democratic societ y, in which the government must justify its conduct to its citizens,
and a police state, in which the government demands justifications from indiv iduals but gives none in return.
Civil liber tarians and criminal defense attorneys value the exclusionar y rule and lament that, in the decades since the 1960s, it has been punched full of holes by cour t decisions favoring the cops ’ side of too many stories. (The exclusionar y rule is principally understood as the rule announced in the Supreme Cour t case of Mapp v. Ohio that, if the police violated the Four th Amendment rights of a person on trial for a crime, the evidence they obtained thro u g h t h a t v i o l a t i on
i n s t t h a t d e fe n d a n t in cour t. Exclusionar y rules are also said to exist for the Fifth Amendment rig ht against self-incrimination under Miranda v. Ar izona, the Sixth Amendment rig ht to legal counsel, and the Fou r te e n t h Am en d
s s of l aw. Wh en people say “ the exclusionar y r ule,” howe ver, the reference is generally to the Four th Amendment rule on search and seizure.)
Sometimes, as in Mapp, the exclusionar y r ule forces the cr iminal justice system to let go of someone who probably did break the law Yet e ver y day judges and lawyers in the cr iminal justice system, who are themselves sworn to uphold the laws, also uphold the exclusionar y rule for a number of compelling reasons.
First, the exclusionar y rule itself is the law of the land, as stated throug h Supreme Cour t decisions that override all other law i n t h e Un i te d S t a te s a n d a s i n te r p re te d n a t i o nw i d e by decisions in ever y state and federal cour t that handles criminal matters. After his retirement from the Supreme Cour t, Justice Potter Stewar t argued that people who don’t like the exclusionar y rule should complain not to the Supreme Cour t, but to the Framers who w rote the Constitution. He argued, as many others do, that the incomplete enforcement of laws is simply the price we pay for hav ing a Four th Amendment. This same argument— that the United States chose long ago to give up some safet y in return for more freedom—can be extended to all the Bill of Rights provisions that keep official hands off of individual rights. Citizens’ rig hts sometimes get in the way of the police or other
authorities, and when that happens, it is not a defect in the system. It is an example of the Constitution doing its job, which is to preserve a balance of power between the individual and the state Second, and possibly more impor tant, the exclusionar y rule is one of the best tools available to make the police obey the law. It does not help simply to tell an officer to respect people’s rig hts or even to make it a crime for members of a police force to mistreat suspects. On one hand, an order to respect rig hts has to be enforceable or it w ill simply be shr ugged off as well-meaning but impr actical adv ice. On the other hand, police officers are trusted as protectors of the public and it is not easy for prosecutors, police executives, or, for that matter, the general public, to turn around and accuse them of crimes, so that is not likely to happen except in drastic cases such as the famous 1991 Rodney King beating in Los Angeles. Fur thermore, police forces could not func t ion if an officer had to b e put on t r ial e ver y t ime a suspect made a claim about a rig hts v iolation. There must be some mechanism that gives impor tance to suspects’ claims about rig hts v iolations and yet does not turn the arresting officer into the accused par t y ever y time such an issue goes to cour t.
Retired Supreme Cour t Justice Potter Stewar t, writing about the Mapp exclusionar y rule
Much of the criticism leveled at the exclusionar y rule is misdirec ted; it is more properly direc ted at the Four th Amendment itself. . . . The inevitable result of the Constitution’s prohibition against unreasonable searches and seizures and its requirement that no warrant shall issue but upon probable cause is that police officers who obey its stric tures will catch fewer criminals. That is not a political outcome impressed upon an unwilling citizenr y by unbek nighted judges. I t is the price the framers anticipated and were willing to pay to ensure the sanc tity of the person, the home, and proper ty against unrestrained governmental power. . . .
Source: Stewar t, “ The Road to Mapp v. Ohio,” pp. 1392–1393.
The exclusionar y rule turns respect for constitutional rights into a goal of the law enforcement profession, in a much more practical way than any number of nice words could achieve Police officers on patrol know that they will not be able to put a suspect behind bars unless the y can present cleanly acquired evidence that a judge will allow to be considered at trial that is, they cannot give the judge any reason to “ suppress ” the evidence under the exclusionar y rule. Police super v isors therefore have reason to remind their officers not to commit rig hts v iolations that w ill cause cases to be throw n out of cour t. Prosecutors, meanwhile, often decide to let an arrested person go free without bringing charges in cour t because the suspect’s rights clearly were violated and there is no point wasting time to begin prosecution that would be defeated by a successful motion to suppress.
In other words, the exclusionary rule, at least in theory, exists to make sure that criminal convictions are obtained cleanly or not at all. In practice, the exclusionary rule has been weakened and there a re s om
the power to stop The exclusionar y rule does have a significant effect, however, and althoug h it is costly in terms of lost conv ictions, it is a respected safeguard in American criminal justice.
There are, of course, ways other than the exclusionar y r ule to restr ain lawless or bully ing police behav ior. One method is to remove procedur al bar r iers to civ il r ig hts lawsuits thoug h, if any thing , the bar r iers have r isen more than fallen in recent years. Cour ts can also issue orders that require cer tain conduct (“injunctive relief ”) or the y can impose fines on police depar tments, jails, and prosecutors. Prosecutors can br ing cr iminal charges against officers themselves in exceptional cases. More gener ally, cour ts have power to declare laws unconstitutional, w ith the Supreme Cour t hav ing the last word on that question, and cour ts have used this power to invalidate laws that inv ited or required cer tain kinds of discr imination. The cour ts have also struck dow n a number of vague laws that police used to create charges against people the y regarded as troublemakers
who were not doing any thing specifically prohibited. The Supreme Cour t of the early 1970s found it unconstitutional for police to ar rest people for vaguely undesir able statuses such as “ being a disorderly person. ” 24
These other approaches to the regulation of police conduct are discussed later in this book. The remainder of this chapter con s i de r s t h e ex ten t to w h i ch t h e exclu s i o
does (or doesn’t) protect the public from official intr usions.
The rights of the accused have been cut back dangerously.
Police conduct exper t Jerome Skolnick w rote, “Despite far more deference to law enforcement than is commonly understood to be t h e c a s e , t h e 1 9 6 0 s we re u n qu
cl e
f constitutional reform in procedural law, setting hig her standards for law ful police conduct than cops had e ver faced.” 25 Those new, hig her standards provoked a backlash that was still in prog ress as of this w r iting . In 1975, law professor Fr ancis Allen commented from the perspective of an indig nant liber al:
In t h e
problems of cr ime in the United States were represented simply as a war b etween the “ p eace forces” and the “ cr iminal fo r c e s ” T h e d
cr iticism of the [Supreme] Cour t, r ang ing from the excited to the psychot ic. Cong ress responded w ith the Omnibus Cr ime Cont rol and Safe St reets Ac t of 1968, some prov isions of w hich were obv iously retaliator y. These e vents combined to create an atmosphere that, to say the least, was unfavorable to the continued v italit y of the War ren Cour t’s mission in cr iminal cases.26
Allen noted, w ith a hint of understatement, that “fears of cr ime and of the collapse of public order are a powerful political dynamic in American societ y, a perception that appears to have
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Title: Salute
Author: Thomson Burtis
Release date: April 30, 2024 [eBook #73505]
Language: English
Original publication: New York, NY: The Butterick Publishing Company, 1927
Credits: Roger Frank and Sue Clark *** START OF THE PROJECT GUTENBERG EBOOK SALUTE ***
Thompson Burtis
tells a story ofqueer birds ofthe Border Air Service
SALUTE
Before advancing a few choice bits of philosophy, speculation and what have you, I’m going to introduce myself. I do this so that you may promptly divest my theories of any importance whatever, and let them roll off your knife smoothly and without effort. That being done, you can proceed, if you like, to digest the illustrative anecdote concerning the little matter of Lieutenant Percival Enoch O’Reilly, Air Service, Regular Army, versus Lieutenant Ralph Kennedy, Air Service, Reserve Corps.
My name is “Slim” Evans, and I, in an idle moment in 1917, became a member of the Army Air Service. I still am, for the simple reason that I’d have to work twenty hours a day in civilian life to make twenty dollars a week. When I was constructed, the supply of brains, beauty and good sense was very limited. However, there was an overplus of noses and feet, so I turned out six feet five inches tall; thin enough to chase a fugitive collar-button down a drain pipe; and standing in a stooped position on a pair of feet so large that I couldn’t fall down if I wanted to.
On the credit side of nigh on to ten years as a flyer, I can put the fact that I’ve done practically no work, made much more money than I’m worth, have avoided monotony and lived through moments of great excitement, not to say thrills. Furthermore, I’ve met diversified people and events which, thank God, have kept me from being smug, complacent or bigoted about anything whatever. On the debit side of the ledger, I have only a couple of my own teeth left, and they do not meet; I have a bad left shoulder, three elegant and permanent bumps on my head, and more scars on me than there are on an ice rink after an evening’s skating.
With this background, you can attach as much weight as you want to this statement. People who’ve lived long enough and seen enough to comprehend a little bit of the complexity of human beings and the motives which spur them to their daily performances, will never be too hasty in damning a man to his eternal roast. On the other hand, they’ll be very cautious about attaching a pair of wings and a halo to any living human.
Once I did that. Everything was either good or bad, including people. There was no middle ground. As a result of that asinine viewpoint, there are memories that rise and smite me when the wind is in the east. R. E. Morse overtakes me and makes life a hell for hours at a time, as I think back to the dumb, cruel things I’ve done—and the fact that the same things have been done to me by others doesn’t help. Here, a girl I’ve misjudged; there, a man to whom I’ve said unwarranted things that I’d give my left hand to take back, and—oh, well, you know, I guess, if you’re out of your mental swaddling clothes.
Consequently, there may be some importance to be found in the fact that my own personally buried skeletons fade almost into insignificance before the climax of a situation that I watched on the Rio Grande, in which I, personally, had no part. Furthermore, the things I’ve seen—gone through, some of them, myself—in ten years of flying become almost like unreal, theatrical claptrap, in comparison with one moment, a mile in the air, that changed a couple of lives and made Penoch O’Reilly into a different man.
You gather, I take it, that the affair made an impression on me.
My observation of the episode started one steaming July morning in McMullen, Texas. Mr. P. Enoch O’Reilly and myself were members, in good standing, of the McMullen flight of the Air Service Border patrol. There were a dozen flights, consisting of ten or twelve flyers and observers, scattered along the Border from Brownsville to San Diego.
The duty of the blithe young men was to pilot DeHaviland airplanes up and down that squirming trouble area, taking peeks at any little matters such as smuggling, rustling, or a little plain and fancy banditing. We aimed to be a sort of Texas Ranger outfit, riding airplanes instead of horses and, in some cases, if I do say it myself, the boys did pretty well. Well enough to make the roar of an airplane motor like the voice of doom to many a frisky outlaw.
Eleven o’clock was the hour for the mail to arrive. I’d just got back from the western patrol to Laredo and stalked into the office with my helmet and goggles still on. It was only a gesture—I never get any mail.
Sitting on the edge of a desk in the operations room, underneath the mailboxes, was Penoch O’Reilly. He was holding a letter in his clenched hand, and his eyes were gazing out of the window with a look in them which was not good to see.
Enthroned in the inner office, at their respective desks, were “Pop” Cravan, our adjutant, and Captain George Kennard, our C. O. Pop was round and obese and bald-headed, with a fiery temper, a nasty tongue, a soft heart and a keen mind.
“Hell!” he snorted loudly. “Another of those reserve officers ordered here for three months active duty at his own request! I suppose he’ll crack up three ships and be more trouble than a case of hives.”
“Who is he?” demanded the stocky, spike-haired little captain in his raucous voice.
“Name is Ralph Kennedy, and he’s a shavetail in the reserve.”
“I know him!” barked Penoch O’Reilly suddenly. “Here’s a letter from him, in fact.”
“Enter into the sanctum, sirrah, and make him known to me,” the C. O. invited him spaciously.
Penoch strode in with ludicrously long steps. He was so short that he’d have to stand on a stepladder to kick a duck in the stomach.
I drifted in lazily, but my curiosity was alive. If I wasn’t wrong, the look on Penoch’s face, as he brooded over that letter, did not indicate ungovernable enthusiasm about the arrival of the new man.
“I knew him a little before the war,” O’Reilly stated in that deep bass voice of his.
Coming from his little body, that voice was as surprizing as it would be to get a brass band effect by blowing on a harmonica.
“He’s not so bad, I guess. Lived an eventful life, anyhow. Was a sergeant in the Air Service—in my outfit a lot of the time during the war and learned to fly then. Got a commission in the reserve when the war was over. He’s a wonderful mechanic, and he can tell interesting yarns.”
“How well can he fly?” demanded Pop truculently. “With these bandits raising hell, and with scarcely enough crates to get flying time in on, we can’t afford to let amateurs spread D.H.’s all over the landscape!”
“Pretty good,” Penoch admitted grudgingly. “He was an automobile race driver at one time, a trick motorcycle artist at another, and all that.”
“Due in this afternoon,” remarked Pop, examining the orders in his hand. “Well, I hope he can play bridge.”
Penoch’s set face relaxed into the ghost of a grin.
“He’s pretty good at most card games,” he said mysteriously. “Going back to the tents, Slim?”
“Uh-huh. All quiet along the river, Cap.”
“I’ll go with you,” Penoch said evenly, and we marched out.
We were surely a comedy team together; and we frequently were together, because Penoch and I had become close friends as a result
of several imbroglios in which we had engaged. He was just an inch over five feet, so you can readily realize that I could have worn the little squirt for a watch-charm.
“Anything special on your mind?” I inquired casually.
“Yeah; but I’ll wait until we get to the tent,” he told me.
We marched on down the line of buildings that bounded the southern end of the small sandy airdrome. To the east and west were big black corrugated iron hangars, baking in the sun. Northward, a fence was the rim of the field, and a few miles farther north was the rim of one hundred and fifty solid miles of mesquite.
While we are galloping down the line toward the tents, take a look at one of the most amazing chunks of humanity I’ve ever met. Penoch, as I’ve said, was short, but his torso was round as a barrel, and his legs straight and thick and sturdy. His muscles, I’d found, were like steel cables, and his strength was as much out of proportion to his size as his voice was.
It was his face, though, that made him prominent in any company. It was square and brown; and a pair of the largest, keenest, brightest blue eyes you ever saw sparkled forth from it and reflected an unquenchable joy in life for its own sake. His hair was red—not pink or sandy or auburn, but red. His eyebrows had been bleached by the sun to a pale yellow; and below his short, turned-up nose, a cocky little mustache, waxed to pin-points, was a similar tint.
His teeth were big and strong and white, and between them, on occasions, there rolled a loud, Rabelaisian “Ho-ho-ho!” that made the welkin ring. Everyone in hearing distance chuckled with him. He looked a bit like a burly little elf—but when he was serious and worried, as he was now, wrinkles leaped into being, and those eyes got hard as diamonds. Then age and experience and hard competence were written for all the world to read.
He is, was, and will be until he dies, one of the most famous characters in the Army. Some of the highlights of his Army career include being stranded in a West Virginia town, where the miners, on strike, were hostile; declaring martial law without authority and running the town for thirteen days, until he could get out; being
captured in the Philippines by hostile Moros, given up for lost, and finally returning, safe and sound, an honorary chieftain of the tribe; and numberless other accomplishments of renown. He had been court-martialed a hundred times, due to his peculiar sense of humor, and had always been acquitted, because a board of officers who’ve laughed steadily for hours at the testimony can’t get tough.
Incidentally, he usually hauled his friends into any trouble which he found for himself. I myself had been court-martialed, along with him and Charley De Shields, just a month before. All due to his funny ideas. It gives a little sidelight on a man who is tough to describe, so I’ll tell it.
The three of us were in San Antonio on a week-end leave, and at one in the morning we were a bit tight, so to speak. Penoch called up a couple of girls for the purpose of throwing a roadhouse dance party. Being respectable young ladies and in bed, they haughtily bawled him out for calling at such an hour. That made Penoch decide upon vengeance. Charley De Shields is just as nutty as Penoch, and I’m no paragon of dignity.
It was Penoch’s idea, though. The apartment house was a small one, in a quiet section of town, and it boasted a small, cozily furnished lobby. We proceeded to divest that lobby of all its furniture. When we finished, we had chairs on top of Charley’s sedan, a davenport on the hood, and everything from potted palms to rugs and bric-a-brac inside the car. The lobby was furnished with a telephone, when we left.
Out at Donovan Field we rang the doorbells of our friends, presenting each one with a tasty bit of house-furnishing, as a token of esteem. At five in the morning we retired, to be awakened at two in the afternoon by the news that the owner of the apartment house was after our scalps, and that returning the furniture might knock off a couple of years from our sentences.
We’d forgotten just where we’d left the stuff. However, we secured a big truck and went from house to house, collecting. At
