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.


The other three justices were stinging in their dissent.


Justice Stewart had the honor of firing the broadsides.

Stewart said the majority was right in saying some seizures of private citizens, less intrusive than an arrest, have withstood legal scrutiny under the Fourth Amendment’s reasonableness standard.

However, Stewart continued, “to escalate this statement into some kind of general rule is to ignore the protections that the Fourth Amendment guarantees to us all.”

Stewart notes that an earlier line of Supreme Court cases had allowed only two types of seizures that need not be based on probable cause: Doing a pat-down on someone who might be armed and dangerous; checking the occupants of vehicles near our international borders to see if they are U.S. citizens.

Stewart said the majority takes these two narrow exceptions and “leaps to the very broad idea that courts may approve a wide variety of seizures not based on probable cause, so long as the courts find, after balancing the law enforcement purposes of the police conduct against the severity of their intrusion, that the seizure appears ‘reasonable.’”

Stewart said his colleagues in the majority were getting too cute. He said they were using a few “isolated exceptions” to perform a fine-tuning of the Fourth Amendment when “the Fourth Amendment itself has already performed the constitutional balance between police objectives and personal privacy.

“The seizure permitted by the Court today, the detention of a person at his home while the police execute a search warrant for contraband inside it, is categorically different from those two special exceptions to the warrant and probable cause requirement, and poses a significantly greater threat to the protections guaranteed by the Constitution.”

I take that to mean: Beware of anyone in authority who, in response to an average citizen’s curiosity about how law enforcement employs the power to “seize” someone’s “person,” says: “Look, over there. A squirrel.”

The Fourth Amendment isn’t a squirrel.

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