In the aftermath of the events in Baltimore, many opportunities have arisen. One of the more significant consequences of these events has been the discussion of what the police can do in certain circumstances and what they cannot do. The awarding of a training contract to Warnken, LLC, to train a significant number of members of the Baltimore Police Department is a good beginning. University of Baltimore Professor Byron Warnken has the credibility and the reputation to deliver a timely review of constitutional issues to police officers. Kudos to the City Council for recognizing this need.
A closely related educational need is providing similar training and information to our citizens. Unfortunately, there are many myths regarding what the police can do and when they can't do during potentially volatile situations between citizens and criminal suspects. Hollywood greatly contributes to these myths in its action-packed, rather than fact-based, police shows.
One such example involves the Miranda rights of individuals who are in police custody. TV would make it appear that whenever the police make an arrest they need to read the Miranda rights to the arrestee. That is not the case. Police are required to provide these rights to those who are in their custody and, most importantly, when they ask questions or engage in actions that are likely to elicit an incriminating statement from the person. The U.S. Supreme Court ruled in the Miranda case about 50 years ago requiring the police to recite the Miranda rights in "custodial interrogation" situations. The high court imposed this constitutional "rule" to assist in guaranteeing this constitutional "right" against compulsory testimonial self-incrimination where the police are attempting to elicit a statement or confession.
The controversy surrounding the Freddie Gray case in whether or not the police made a constitutionally valid arrest based on probable cause is another interesting learning opportunity in addition to the circumstances leading up to that arrest. The U.S. Supreme Court has ruled that the determination of whether an arrest is legally valid is based on a determination of probable cause for any' criminal violation whether or not the police made a mistake initially regarding what crime he was arrested for. This whole issue centers on the government taking one's liberty away from him or her and is fundamentally based on the 4th Amendment's prohibition against unreasonable searches and seizures. An arrest is a seizure of the person. When the police make a technical mistake as to what crime they are arresting a person for is not necessarily a fatal mistake as to the constitutional validity of that arrest. Defense attorneys for the officers involved in the Gray case are correctly focusing on this factor.
A lot of media attention has focused on the initial eye contact between the officers and Freddie Gray which led to Gray running from the police and the police pursuing him. According to established case law, unprovoked flight, absent any other factor, is not a good reason to go after that person to stop and detain that individual for investigative purposes against that person's will. But, rarely, in real-world policing is that the one and only factor that is present at the time when the police are making that instant decision to pursue someone. The U.S. Supreme Court realizes the quickly unfolding events that occur when the police confront someone suspected of criminal activity (just happened, is happening or about to happen). Other significant factors that can be added to the stop and detain equation include any furtive or suggestive movements by the subject, known criminal history of the suspect, crime demographics of the area, discarding evidence along the route, etc. Reasonable articulable suspicion of criminal activity is the legal foundation to stop and detain, not probable cause.
The learning opportunities go on and on. Not only do the police need to engage in an active review of ever-changing case law as it relates to confronting individuals and taking their liberties away from them, but equally important, is the need for citizens to take the initiative and educate themselves as to their own constitutional rights. Accosting, investigative detention, stop and frisk, reasonable articulable suspicion, probable cause, totality of the circumstances — all of these terms mean something different to different people. We must begin the educational process to reduce the knowledge gap that will further alienate the police from the community that they serve and protect.
Education and communication are the foundational cornerstones that will begin to bring our communities together, realizing that failure to recognize the significance of this rebirth will further doom all of us to more of the same.
Jay Zumbrun is an associate professor of criminal justice studies at the Community College of Baltimore County (CCBC), Catonsville campus, and a retired law enforcement officer. He currently teaches constitutional and criminal law in several law enforcement academies in the Baltimore metropolitan area. He can be reached at jzumbrun@ccbcmd.edu.