Cuff 'em: Policy, Procedure and the Police Auditor

As handcuffing by cops grows in prevalence, George Hostetter looks at the Fresno Police Auditor’s complicated role.


Stevens, delivering the majority opinion, got right to the point:


“The initial detention of respondent, which constituted a ‘seizure’ and was assumed to be unsupported by probable cause, did not violate his constitutional right to be secure against an unreasonable seizure of his person,” Stevens said.

“For Fourth Amendment purposes, a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted. Because it was lawful to require respondent to re-enter and to remain in the house until evidence establishing probable cause to arrest him was found, his arrest and the search incident thereto were constitutionally permissible.”

Stevens doesn’t shy away from stating what the officers did to Summers.

“In assessing the validity of respondents initial detention, we note first that it constituted a ‘seizure’ within the meaning of the Fourth Amendment,” Stevens said. “The State does not contend otherwise, and the record demonstrates that respondent was not free to leave the premises while the officers were searching his home.”

Stevens refers to an earlier Supreme Court case (Dunaway v. New York) that held that, as a “general rule,” an officer must have probable cause to seize someone even if no arrest is made.

Stevens then quotes from Dunaway:

“Hostility to seizures based on mere suspicion was a prime motivation for the adoption of the Fourth Amendment, and decisions immediately after its adoption affirmed that ‘common rumor or report,’ ‘suspicion’, or even ‘strong reason to suspect’ was not adequate to support a warrant for arrest.”

Stevens then uses Dunaway to set up the logic behind the Court majority’s decision in Summers.

“Although we refused in Dunaway to find an exception that would swallow the general rule, our opinion recognized that some seizures significantly less intrusive than an arrest have withstood scrutiny under the reasonableness standard embodied in the Fourth Amendment,” Stevens said.

“In these cases the intrusion on a citizen’s privacy ‘was so much less severe’ than that involved in a traditional arrest that ‘the opposing interests in crime prevention and detection and in the police officer’s safety’ could support the seizure as reasonable.”

Stevens then adds what to a layman like me seems to be a parenthetical comment.

Because the detention of Summers took place in his own house, Stevens said, the officers’ seizure “could add only minimally to the public stigma associated with the search itself and would involve neither the inconvenience nor the indignity associated with a compelled visit to the police station.”

I like that comment because here we have a Supreme Court justice acknowledging that the public seizure of a private citizen by the State, however seemingly modest in scale, can cause that private citizen to suffer a “public stigma” or “indignity.”

I’m not saying such a “public stigma” or “indignity” in any way trumps the preservation of public order and the progress of justice. I am saying the person on the receiving end of the stigma or indignity probably isn’t going to forget it – and that can have policy implications down the road.

Stevens said the officers had good reason to seize Summers.

“Most obvious is the legitimate law enforcement interest in preventing flight in the event that incriminating evidence is found,” Stevens said. “Less obvious, but sometimes of greater importance, is the interest in minimizing the risk to the officers…. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.”

Finally, the majority decision in Summers includes another footnote I found most interesting. It is a quote from a 1964 U.S. Supreme Court decision written by Chief Justice Earl Warren.

“The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances,” Warren wrote.

“And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of the seizure … warrant a man of reasonable caution in their belief that the action taken was appropriate?”

Ensuring that the “scheme” of the Fourth Amendment remains “meaningful” in Fresno seems like a worthy chore for the “neutral scrutiny” of the Office of Independent Review.

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