Is This a Police State?

Lat year I struck up a conversation with a nurse who was caring for my grandmother. We chatted for a few minutes, and she asked what I did for a living. Finding out that I’m a criminal defense attorney in Kansas City, she couldn’t wait to tell me about her time as a cop in Olathe in the early ‘90s. She said that she decided to become a police officer so that she could help people—undoubtedly true, as she later became a hospice nurse, which is hardly a task for the selfish. Anyway, she told me that there was a standing, unwritten—secret, really—policy of tailing any car with out-of-county tags and pulling the driver over once they witnessed a traffic violation.


She also told me why she resigned in disillusionment after only a year on the job. She and her partner had been in a high-speed car chase after trying to pull someone over for speeding. The guy finally pulled over, and she and her partner ordered the driver out at gunpoint. He complied, moved to the back of the car, put his hands behind his head, and got on his knees. From behind her, however, the unit’s canine officer came rushing in and beat the hell out of the guy, cutting his eye open, even though he had already submitted to the officers. Anyway, she completed the arrest, and took the man in for booking, but, once at the station, the driver slammed his head into the sally port window. Tasked with drafting the report, she wrote that the driver’s cut was from a closed fist to the head delivered by the dog officer. Her sergeant hauled her in and demanded that she write that the injury was due to the driver slamming his head against the window. She refused, telling her supervisor that she would absolutely not commit a crime by filing a false report. She was suspended for a week and then promptly quit her job.

Obviously, tailing non-Johnson County drivers and then harassing them for coming into Olathe is morally repugnant. It’s not surprising—I mean, how long will I last in Mission Hills with my Missouri tags?—but is it legal? And if it is legal, how far can the police take it? This leads directly to the legal conclusion that the police have nearly unlimited power to search someone’s car at will and without probable cause.  Here's how:

Several years ago, a woman in Texas was arrested for not wearing a seatbelt. The officer berated her, cuffed her, and dragged her in to post bail for a charge that carried no possibility of jail time. She pleaded no contest to the ticket, paid her fine, and then sued the city for the apparent civil rights violation. The U.S. Supreme Court ultimately reviewed the case, and decided that as awful as the officer’s behavior was, it was not unconstitutional. They ruled that a cop may, upon belief that a traffic violation occurred, arrest the driver. (Any person living east of Troost knows this to be true.)

In Missouri, as in Texas, officers are expressly permitted by statute to arrest individuals whom they have witnessed commit any offense, including ordinance violations. 

Once a driver is arrested, the officer must deal with the car. So long as there is a written policy regarding the towing of vehicles, the officer may tow the car. In Kansas City, for example, officers may choose to tow a car, leave it parked, or release it to another driver. And, whether or not a car is towed may be left to the discretion of the officer (this is yet another Supreme Court ruling). Once an officer decides to tow the car, he or she may inventory its contents, i.e., search it. This search is theoretically to protect the department from liability for damaged or stolen property, but, so long as it is legally justified, it may be used to search for contraband. These searches, too, are completely constitutional.

In sum, an officer may follow you until you commit a traffic infraction, no matter how minor. Didn’t turn on your signal soon enough? Didn’t shut down your high beams in time? Drove in the left lane without passing? He may then pull you over and arrest you for the violation. Once you’ve been arrested, the cop may tow your car, and search it before it’s towed. It’s that easy.

Now, how secure do you feel?


Rick Johnson
Johnson & Johnson, LLC
Kansas City, Missouri
http://www.johnson-johnsonllc.com/