Secure in Their Persons

The Fourth Amendment

In 1980, the legal age to drink in Minnesota was 19, and I was 19.  My friend–we’ll call him Mark to avoid confusion–was 17.  He and I had been very good friends together in high school, even though he went to a different school, we knew each other through our involvement in a Christian youth group.

Mark always looked older than he was.  He had long hair and a beard even when he was 14.  He looked like a damn hippie, according to my dad, which filled Mark with a bit of pride since that was the “look” he was going for.  We really did quite a few things together, but being observant and good Christian kids, we never did anything illegal or immoral, and that is the story I am sticking with regarding any activities in which we may have engaged prior to me achieving the age of majority.

I left Hallock High School when I was 18 to go to school at Mount Saint Benedict’s Academy in Crookston.  (MSB was the school with a Nature Trail.)  I lost touch with Mark and didn’t see him for most of my senior year, but during the summer, I was back at home in Hallock and working for the Kittson County Highway Department on the signs crew.  Mark and his family had moved to a different farm. Although not much further away, it was far enough that he wasn’t on my daily radar.  We had grown a bit apart during the year, and both he and I had started moving away from the good behavior phases of our Christian Walk.  What I mean is that he and I had both become “partiers.”

One Friday in July, he called me up after we hadn’t talked for more than a month and asked if I would like to go to Newfolden and a street dance/town fair.  He had a new girlfriend, and he wanted me to meet her. We could party with her and her friends.  I thought it sounded like a good idea.  Newfolden is only about 40 miles from Hallock, but I had never met anybody from there and I thought it would be a good opportunity to make new friends (and possibly get laid).

On that Friday, I drove over to Mark’s new place and sat down to have a beer with him and his mom.  We caught up a bit, smoked a couple of cigarettes, had a beer and just enjoyed ourselves on a beautiful summer evening in northern Minnesota.  Then we made our plans for the evening.  The first stop would be to Lake Bronson, where I was to buy a case of cheap beer, then a drive down to Newfolden.  Then, while waiting for Mark’s girlfriend to finish up some family thing she was doing (apparently an event Mark was not invited to), we would drive around Newfolden to get the word about where the after-dance party would be.

At the Lake Bronson Municipal Liquor Store, I bought the beer, proud to show my license to the clerk and prove to her that I was old enough. I set the license down on the counter and paid for the beer.  I left the store and put the beer in the back seat.  It occurred to me that the beer wasn’t going to stay cold and that I should have bought a cooler, but then assumed that wherever the party was there was likely to be a cooler and some ice.  It was gonna be okay.

When we arrived in Newfolden, there were a bunch of people milling around, kids our age but nobody that Mark really knew, so we weren’t gong to ask them where the party was going to be.  We both realized that after the beer that we had drunk at his mother’s place, we needed to go to the bathroom, so we looked for an open restaurant or gas station or someplace that would have a privy for visitors to their fine city.

Apparently, by nine-o’clock at night, all of the gas stations and restaurants in Newfolden were closed.  This was weird, and also weird that in planning for a street dance, the organizers had not considered that people might actually have to go the bathroom.  I wonder now whether they had decided that in such a small town, people would just go to their houses to pee if they needed to.  It was completely unprofessional, in my opinion.

We didn’t spend a lot of time thinking about it.  We just knew two things:

  1. Since Mark was still under age, it probably wasn’t a good idea to be cruising Newfolden with beer in the back seat.  The cops didn’t know me or my car, and they would probably try to find some reason to stop us.  I didn’t need a ticket for “Contributing to the delinquency of a minor.”
  2. We both really needed to go to the bathroom.

In rural parts of the world, using the great outdoors for the bathroom is not strange, nor is it even looked down on.  It’s common practice out in the country if not right in town.  So, we did what we had always done and what our parents, cousins, uncles, family, friends and bosses had always done.  We drove outside of town for a mile and found a country road to drive down until we found a small stand of woods with some trees we could hide behind while we pee.  I don’t interpret this as public urination, and I don’t think my Grampa would have either.  We seriously doubted that a small town cop would even look askance at it.

We also needed to take care of item 1 on our list.  I really didn’t want to have a local cop or deputy pull us over and find the beer in the back seat.  I had no interest in having to call Dad to tell him I was in jail in Warren.  So we moved the beer from the back seat to the trunk, got back in the car and drove back to town.

There was a new problem to deal with. Waiting at the end of the farm road, blocking our access to the highway, was a police car.  The lights weren’t on, so we weren’t sure if he was waiting for us or not. We were not going to be able to avoid scrutiny.  As we approached the road he hit his siren button and his lights button and so I knew we were going to be “interviewed.”  I stopped the car and politely waited for him to approach us.  In the meantime I was reaching for my wallet to show him my driver’s license.  I looked over at Mark and mouthed the words “Fourth Amendment.”   He knew what this meant.  Don’t say anything incriminatory.

The cop approached the window as I was opening my wallet.  Sure enough, he asked for my license and everything would have been smooth had I not left the fucking license at the Municipal store in Lake Bronson.  I had laid it on the counter, but I had not picked it up and put it back in my wallet as I left the store.  I had a sinking feeling that this was not going to go well.

One thing in my favor was that if they smelled beer on my breath and asked me to blow into a breathalyzer, it had been more than an hour since my last beer and I would blow less than a “.01.”  It’s the old rule of thumb that it takes the body ab0ut an hour to clear an ounce of alcohol from the blood.  Mark would have also had sufficient time.  We had no empty beer cans in the car.  That was another plus.  Mark was underage, though, and there was beer in the trunk.  Even though they would not have had any proof that I was going to share my beer with Mark, I think they could have made a case for “probable cause” if they wanted to raise a stink about it.

I couldn’t produce my license for the cop and told him I thought I might have left the license at the gas station where I’d bought cigarettes.  He asked me to step out of my car and into his so he could call the dispatcher and check to make sure that I had a valid license.  I had memorized the number and so I told him what it was, to make his job a little easier.  So, I followed him to his car and he got on his radio and called the Marshall County Sheriff dispatcher so she could run the number to get verification.

He asked me what we were doing back there and I told him that we had gone back there to go to the bathroom.  He knew there was more to the story, and he was fishing to get me to tell him more.  But I wasn’t going to be stupid that night in a strange town.  If it was my own town, it would have been a simple matter of the cop confiscating the beer and telling me to take Mark home.  In a strange town, I didn’t know what they were likely to do.  I didn’t want to take the chance that they would haul me to Warren and the Marshall County jail so that they could find something to charge me with.  I wasn’t about to enable them if that’s what they wanted.

He got all friendly with me and we talked about Hallock, and he told me how he used to party there every once in a while when he was in high school.  He was trying to get my guard down, playing “good cop.”  Every once in a while he would ask me what was in the trunk, and I told him that I had some tools, a jack and a spare.  I didn’t see any reason to tell him about the beer.  He asked if he could search it, and I said, “No.”   I said, “No,” every time he asked.

He then tried a different tactic, trying to intimidate me into letting him look in the trunk.  “I know the guy that owns this land.  He would probably file a trespassing charge if I called him and let him know you were on his property.”  It didn’t work. I just smiled at him and said, “No, I am not going to open the trunk unless you get a warrant.”

The dispatcher radioed back that my license was valid, and she confirmed my birth date.

In the meantime, another cop had come along and was interviewing Mark while Mark was sitting in my car.  Mark told them the truth, that he was underage and that he had had a little bit of his mom’s beer at her house before we came down to Newfolden.  And that is all that he told the other cop.

The one who had been interviewing me got out of his car while telling me to wait in the front seat.  The two cops consulted with each other and decided that pushing us to open the trunk would be a waste of time, so they decided to let us go.  When I got back to my car, I asked Mark how it had gone and he told me that the other cop had tried to push him on the contents of the trunk, too, and had tried the “trespassing” gambit.  It didn’t work on him, either.

We pretty much decided to get out of Newfolden, because we didn’t want to get caught at a party by the local cops that same night.  They already suspected us, and it wouldn’t take much for them to decide to put us in our place if we were drinking with minors.  I also wanted to get back to Lake Bronson and pick up my license from the liquor store.

Since both Mark and I are white, and since the cops were white, this went down much easier than it might have.  We respectfully held our ground on our Fourth Amendment rights, and the cops respected those rights and decided that they had other things to do.  I wondered how it would have worked if either one of us had been Indians, or even black.  In northwestern Minnesota, racial profiling works a bit differently than it does in Cambridge, Massachusetts.  Since the region is close to homogeneously white, meaning there are few blacks, there is little opportunity for the cops to bring their authority unnecessarily to bear on black kids.  So, race being less of an issue, they had to profile somebody and out-of-towners were sufficiently “other” to be targets for interviews.  After talking to me for a bit, the cop decided that I wasn’t “other” enough to hassle further.

Mark and I were able to laugh off the incident and after I dropped himself off at his Mom’s house I headed home and watched TV.  I saved the beer in my trunk for another day.  I had held my ground on the Fourth Amendment right to be secure in my person and I had won, and I am thankful for the Bill of Rights.  You see, we don’t have the right to break the law, but we do have the right to deny authorities too much intrusion.

Even if there had been nothing in the trunk, I wouldn’t have consented to a search without a warrant.  I would have still asked the cop to get a warrant before opening my trunk, even if I had “nothing to hide.”  It’s a reminder to cops that even though their badges give them some authority, it doesn’t give them all authority.  I recognize that, being white, I have a little extra leeway in asserting my rights.

Henry Louis Gates isn’t given the same leeway by the Cambridge Police Department. I tell my story in response to one of the comments at Dispatches from the Culture Wars. (Ed Brayton is DuWayne’s brother, and DuWayne is one of our valued Quiche Moraine commenters.)  Here is the comment that disturbed me, and reveals the mindset that allows the government to get away with intrusions on our privacy as initiated by the Cheney Administration.  Dismayingly enough, Obama has been slow to dismantle what Cheney put into place.  Here’s the comment:

It is all about time and place. Would you stop a firetruck on the way to a fire because you don’t like how they are driving? If your in court and you think the judge isn’t following the law do you interrupt him and cuss him out? In either case do you claim that their objection to your interference is a violation of your right to free speech? How stupid are people going to be?

When dealing with police you save you objections and observations until the situation is under control. Once under control you may voice your complaints as long as the way you do so doesn’t cross the line in language used into assault or in volume into disturbing the peace.

Failure to follow these guidelines tends to get you arrested and held until you cool down. Get over it. This is part of being a citizen and an adult. There are times and places for protest and rants.

In Gates’ case, there was no probable cause for the cop to follow him into the house.  Gates’ hadn’t consented and was rightly upset at this intrusion.  From this point on, the cop was guilty of violating Gates’ rights to be secure in his person.  How he handled it is immaterial to Crowley carrying out his duties.  Gates had reason to distrust a cop in Cambridge because there is some history there, as Dr. Laden has pointed out.

I am of the strong opinion that the police need to obey the Constitution when carrying out their duties.  The Fourth Amendment is a shield that we need to wear, even when we have done nothing wrong.  If cops have trouble complying with it, they need better training, not knee-jerk defenses from their union.  Crowley acted stupidly, and President Obama was correct in his assessment.  He didn’t say that Crowley was stupid, he said that Crowley acted stupidly.  Anyone who has trouble with this distinction is either purposely twisting this for political reasons, or has difficulty in discerning the difference between attacking an action and attacking a person.

If I, in my position as a person of privilege because of my race, hold to the Fourth Amendment when the issue comes up, then people who don’t have my advantage because of their race will benefit. It takes away one defense for bad cops.  Remember the Fourth Amendment.  The cops have enough authority at their disposal to fight crime.  We don’t need to give them all authority.

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3 Responses to “Secure in Their Persons”

  1. July 27th, 2009 at 10:32 pm

    a daughter's mother says:

    I could go on a long rant agreeing with you on the Cambridge case, but I’ll just add a note about your right not to have the cops enter your house without a warrant and evidence of a crime (demonstrated before the arrest in this case), your right to swear at the cops within your own home at whatever level of volume, and your right to refuse their invitation to step out of that same house where you suddenly can be arrested for that same commentary under the broadly meaningless charge of disturbance of the peace.

    Now, back in 1980, how did a 19-year-old have the savvy and cojones to refuse cops access to your trunk?

  2. July 28th, 2009 at 6:44 am

    Mike Haubrich says:

    I had been paying attention in Civics class and it was still fresh for me. That, and I have always been a bit devious.

  3. July 30th, 2009 at 10:49 am

    Bob says:

    Rule of thumb on searches: If the cops ask, you can say no. Otherwise they wouldn’t bother asking (see ‘probable cause’, and ‘search warrant’)

    This doesn’t mean anything nefarious is going on or that the cops won’t find some way to make your life miserable for not just rolling over and waiving your rights. Cops engage in such ‘fishing trips’ all the time; a lawyer friend has an interesting anecdote about getting pulled over on I-10, a big drug artery.

    My advice, for what little it’s worth, is to know your rights, be polite but firm, stay calm, and don’t offer any information. And if you’re a gambling man and cops persist in badgering you, ask if you’re under arrest. Once they know who you are and have control over the situation (i.e. everyone is standing around talking calmly), call their bluff. Either they have enough to arrest you (and they don’t need to talk to you anymore) or not. And if you’re not under arrest, you can go. The phrase ‘Am I under arrest?’ is magic; it forces a decision. Granted, the cop might arrest you and let you rot in jail for 72 hours or so until they’re required to charge you or let you go, but it’s a calculated risk.

    It is much easier to invoke your rights if you know what they are and understand a little of police procedure and the law. The police are at a great advantage because this is their day job, they generally know how far and how hard they can push when they have nothing. And as my lawyer friend quipped, the two people who know how little cops know about the law are cops and lawyers.

    Nothing will protect you from a bad cop but understanding your rights, police procedure, and the legal system should make it easier to keep cool and assert your rights. Best to have all that info long before you need it.

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