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Join the conversation! There are now 32 comments on “Police vs Privacy pg 58
  1. Alectric says

    Free to go? Shouldn’t he still have to answer for the blood? Isn’t he still a suspect in the murder case?

    • The investigation into his criminal activities seems to have ended with the seizure of the smack. Not uncommon. In any event, that’s all he was charged with.

      But that doesn’t really answer your question. The better answer is, they can’t detain him indefinitely while they go back and figure out whether he had anything to do with the murder. That would count as an arrest, and they can’t arrest him for the murder without probable cause to believe he had something to do with it. And on these facts, they’ve got nothing. For all we know, he was just on his way home from a barbecue joint.

      That’s not to say that “arrest first, investigate later” isn’t the way things are done in some counties I could name; but it’s unconstitutional to do so without p/c.

    • There are probably a hundred reasons to have something that looks like blood on your sleeve that are 100% legal. Granted the location of the event affects the probability of any one of those, but short of a solid connection with a dead or wounded human body, the “blood”, he’s a free man.

      • Heck, I tend to chew my fingernails too much, and if I bite a hangnail, I might bleed on my sleeve. Still, considering the goose chase attempt, his suspicious behavior, and the rest of it, he’s a little more suspect than someone walking down the street with a little dried blood on their sleeve.

  2. mouse says

    Thanks for taking the time to make this site! I discovered it a week ago and I’m addicted now. :) Here’s a question: The drugs in this scene were in a plastic bag, an item which, as the comic points out, could hardly be mistaken for a weapon. However, what if the suspect had the drugs in a plastic pill bottle or something else that wasn’t soft and crinkly? Could the prosecutor then assert that the evidence was legally collected because the officer “reasonably thought the solid object she felt was a weapon” or something to that effect?

    • Thanks for reading!

      You’d be amazed at the variety of hard objects the police claim to have thought were a weapon. Sometimes legitimately, sometimes not.

  3. MGP says

    A plastic bag tucked into his waistband? Seems like it would be reasonable of the police officer to suspect that it was contraband. Seriously, what else would it be?

    • But the issue isn’t whether it was reasonable to suspect it was contraband. The issue is whether the officer could actually TELL that it was contraband, without doing anything more than a pat-down.

      So if, in order to figure out what the object is, the officer has to manipulate an object through your clothes, or lift your shirt, or reach in and grab it, or do anything else beyond a mere pat-down of your outer clothing — then the officer has gone too far and it’s a bad search.

      This is called the “plain feel” exception — but I didn’t feel like using the name yet before we’ve discussed the “plain view” exception on which it is based. We’ll come back to this then.

      In a nutshell, though, if the officer is lawfully in a position to notice what the contraband is, whether by sight, smell, touch, or what have you, then she shouldn’t have to ignore it. But if she has to go beyond the lawful scope of her authority to figure out what it is, then her search was unlawful.

      • So if, instead of reaching in and taking it, she had asked him what it was and made him show it to her, it would have been admissible as evidence?

        What if she claimed that she could tell it was an illicit substance based on the texture she could feel through the bag?

        • Ha! If you can wait a bit, we’ll hopefully be answering your first question soon.

          As for your second question, if she really could have told what the item was simply by patting down the outside of his clothing — and not by manipulating it to feel it better — then it would count as a “plain feel,” and it would be admissible.

          But on these facts, it simply could not have been obvious what was in his pants from a mere patdown.

          • I’d think that would depend on how familiar the officer was with the feel of drugs in whatever the common packaging was for the area.

            I worked in a military prison for several months, and patted down dozens, sometimes hundreds of detainees a day. After a few weeks of that, I got so I could recognize the feel of a scrap of paper the size you’d find in a fortune cookie through a layer of clothes. It’s true that to start with all we could tell was that something other than cloth was there, but if you do enough searches you can identify things by feel as well as you could seeing them.

        • I believe that if she had asked him what it was and if she could see it, and he was dumb enough to, it would be admissable. If she had made him show it to her with threats, it wouldn’t.

  4. Jason says

    I think I had to look at this set of panels several times before the variety of reactions to the suppression really sunk in. I love discovering new levels to your artwork and your content.

    Nathan: I’m curious as to whether or not you’ve ever fist-pumped in court?

    As always, keep up the great work!

    • Thanks! I have a lot of fun drawing this, and I’m glad some of that comes through. (And this page is a good example of me doing things purely for my own enjoyment.)

      I’m not really a fist-pumping kind of guy. But even if were, I’d still prefer to let the clients do the reaction. (Fist-pumping and high fives are not uncommon, though I’ve had grown men jump on me to hug me like a teenage girl, owmyback. I’d be lying if I said such things aren’t what keep me going, sometimes — it’s addicting, like applause to an actor.)

      • What about the forehead-tapping exhibited in the second-to-last panel? Is that a gesture you make before a really good point?

        (I’m a physicist, but I catch myself making specific gestures before really good arguments… often a Fonzie-esque finger snap.)

  5. Echoloco says

    Can I just say I love everyone’s expression in the last panel?

  6. John says

    How often does that really happen, though? I understand that this is the way it’s supposed to work, but given our current ‘War on Drugs’ and obsession with putting people away for even possession — how likely is it that in real life a man found with heroin would have the charges dropped, even if it’s found through a violation of privacy?

    • I suspect that it depends on the judge who oversees the suppression hearing. Some judges care more about ensuring that criminals are punished. Some judges care more about upholding the 4th amendment. Remember, the judge gets payed whether they suppress the evidence or not, and in most cases no one will ever know whether the evidence was suppressed or not who wasn’t at the suppression hearing. So there is no reward for suppressing illegal evidence, but there is also no reprisal for suppressing illegal evidence.

    • I would expect that well before he reaches this point, the cops would have coerced a confession out of him. He’s been caught red-handed, so as far as he knows they have an airtight case against him. It’d be easy to convince him things might go easier for him if he owned up.
      If he managed to get a lawyer somehow, and was advised that they don’t actually have anything they can use in court and keeps his mouth shut, then the illegality of the search is pretty clear (I don’t know what π was thinking, trying to sell that story), so unless the cops get cute and lie about the circumstances of the search, he should be free to go.
      “Extra! Extra! Read all about it! Local druggie caught red-handed, gets off on technicality! Are we losing the War on Drugs™? Support the new bill to give our brave boys in blue the power they need to put villains like this away in future!”
      Get the picture?

  7. Sascha says

    Hello all,

    I have only recently discovered this site, and I am amazed how clearly and easy to understand things are explained. Thank you for this great work!

    However, coming from Europe, I notice how different your rights are in different legislations. In most places in Europe, appearing near a murder szene with blood on your clothes is well enough to be not only stopped but also searched and possibly held for up to 24 hours.

    There is also usually nothing that keeps the curt from admitting evidence, even if it had been obtained unlawfully (even for the big fish: bank account data that was stolen from Swiss banks brought down even high-profile tax evaders).

    The good news for our pot smoking friend here (let’s just assume he had a nose bleed) is that punishments for possession of “soft drugs” are generally softer in Europe as well: What he could expect ranges from a disapproiving look from the police officer (in Holland) over a seizure of the drugs (Germany) to a few hours of communit work (almost everywhere else). That is, if there’s no reason to believe he’s dealing with the stuff (in which case he would probably be hired as an informer…)

    ag

  8. Karen says

    What a brilliant, brilliant site – I love the artwork and the narration is gripping.

    I have a question – What if, as above, they find contraband on you but it is inadmissible for whatever reason. What is stopping them from clocking the information and simply following you once they let you go, or keep a note of your details to keep tabs on you afterward? After all, they KNOW you have contraband so there’s probably something fishy about you, right? All they have to do is keep an eye on you until a “reasonable cause” just happens to present itself.

    • Nothing. I work for a government agency that has investigators, they look for evidence of fraud or other crimes related to regulatory stuff. Most of our investigators are former cops and have told me the kinds of things they do and have done during stops and interrogations.

      If a cop notices something wrong, inconsistent, or illegal, they won’t necessarily seize it or even let on that they noticed. They’ll gleefully play dumb until later. If a cop can let you think that everything is fine then you’re more likely to let your guard down and reveal something yourself so that it doesn’t have to be forced or coerced.

  9. ManYunSoo says

    He may be free to go now, but surely he’s on a watchlist of some sort at the local PD.

  10. Chris Katko says

    Gosh, I never realized how easily having allergies + nose bleeds could get me arrested. There are times where I almost always have a bloody facial tissue (or lacking that, some improvised cloth) on me.

    I’m wondering how that could be argued for or against in a court case.

  11. Phil says

    What’s that exception for contraband?

    Does that mean if an officer feels something “illegal-feeling” they can take it out? Does the contraband then become the reason for arrest?

    Or what if they feel something that is related to the crime?

    Say the heroin had been marijuana, and the officer stopped the suspect because she smelled marijuana in the air? Under plain sight, or plain smell, the officer would have reasonable suspicion that something criminal was happening. The officer could then frisk the suspect. Could the officer then take away the baggie of marijuana and use it as evidence, since it was related to the crime? What if it was a smoking device, and the officer took it out thinking it was a weapon? If a “weapon-like-object” turns out to be contraband related to the crime, is it admissable as evidence?

    Or would hiding everything in your pockets be enough to keep them safe from seizure as evidence in the eyes of the courts?

    Love your comic, by the way!

  12. If a person just walks away, can this be considered suspicious? Also, does he get his heroin back or does it sit in an evidence locker forever?

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