Mimesis Law
25 April 2019

9th Circuit Confirms Yet Again that Officers Can Lie to You

Apr. 1, 2016 (Mimesis Law) — Police officers can lie to you. Without consequence. And there is nothing in the 4th Amendment to say that is unreasonable, according to the 9th Circuit Court of Appeals in United States v. Magallon-Lopez. Judge Marsha Berzon’s concurrence puts it best:

Is it fine for police officers flatly to tell the drivers they stop that they observed—or thought they observed—a traffic violation when they really did not? We hold today that it is. And I cannot disagree, as the line of cases that begins with Whren v. United States, 517 U.S. 806 (1996), seems to lead ineluctably to that distressing conclusion.

In this case, police officers performed what is often known, adorably enough, as a “whisper stop.” A whisper stop occurs when there is a federal investigation into a citizen, usually for drugs. Local law enforcement are told the “true” reason for the stop, but are encouraged to lie to the citizen and possibly the courts about why the person has been pulled over.

Here, police officers were on the lookout for a car transporting methamphetamine from Washington to Minnesota based on information obtained from wiretaps. They knew they were looking for one particular guy, Juan Sanchez, that he would be driving with another Hispanic male, and that he would be in a distinctive car with Washington plates.

So the officers pretended that they saw the driver commit a traffic violation, in this case, changing lanes without signaling (this can’t have been too novel for the officers, phantom lane-changes are an “epidemic”). They confirmed that there was a passenger named Juan Sanchez, pulled everyone out of the car, sat them by the side of the road, and had a drug dog sniff the car until it alerted, either to the smell of drugs or a stiff boot to the ribs from the K-9 officer. At this point, the car was seized, a search warrant sought, and two pounds of methamphetamine later, a motion to suppress.

At that motion, the driver argued that it was unreasonable under the 4th Amendment for police officers to lie and make up a reason for stopping him. But the court made short work of that argument:

So long as the facts known to the officer establish reasonable suspicion to justify an investigatory stop, the stop is lawful even if the officer falsely cites as the basis for the stop a ground that is not supported by reasonable suspicion.

Sadly, this result is mostly a foregone conclusion. Under Whren v. United States, it never matters what the actual reason for stopping someone is, only whether there is some conceivable argument that they deserved to be stopped. So, for instance, officers seeking to pull over exclusively minority drivers can hang out in a bad neighborhood and pick out any minor infraction as the basis for a stop. In Georgia, the “frame” around a license plate that many dealers affix serves as rolling guarantee for probable cause, while Michigan allows a stop for anyone who has a trailer hitch.

The concurrence optimistically states that there might be some sort of due process violation when a police officer fails to inform a citizen of the reason for the traffic stop. After all, it prevents the citizen from being able to explain what really happened and why a stop might be inappropriate.

At least in part because of these considerations, I would not foreclose, in another case, holding that there is a due process (not Fourth Amendment) based right to be informed of the true basis for a stop or arrest.

I’m gonna go ahead and foreclose it. Whren was unanimously decided. And while it’s great to hold out hope that the Supreme Court might change its mind, grasping to Justice Jackson’s mantra that “ I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday,” there hasn’t been a lot of grumbling since Whren about the problems created by encouraging police officers engaging in pretextual stops.

So that’s the situation we live in now. It is definitely a crime to lie to government officials. It is definitely a crime to lie in a courtroom.

But for police officers, the rules are different. They can lie to criminal defendants. They can lie to people from whom they’d like permission to search. They can generally lie to juries, so long their prosecutor isn’t interested in pursuing perjury charges against them. And, more to the point, they’re trained to lie. They even receive training on how to appear “credible” in court.

Long-story short, we don’t live in a country where anyone in power is obligated to tell the truth. And you’re lying to yourself if you think otherwise.

5 Comments on this post.

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  • Richard G. Kopf
    1 April 2016 at 9:08 am - Reply

    Andrew,

    With respect, you too easily conflate lying to a drug mule about the reasons for a car stop with lying under oath to a judge or jury about why and how you lied to the mule about a drug stop. The two are very different. More importantly, and in my experience, the first does not lead inexorably to the second.

    Drug investigations involve nasty tactics that many civilians and most CDLs find offensive. But the Constitution is not The Gentlemen’s Book of Etiquette. In short, the Constitution as properly interpreted often confirms that the ends do justify the means even if Ms. Manners is appalled.

    All the best.

    Rich Kopf

    • shg
      1 April 2016 at 9:19 am - Reply

      I tried a drug case in federal court in Bowling Green, Kentucky years ago, that involved a state highway patrol officer who prepared his report based upon the lie he used to pursue his investigation. On cross, I asked him whether it was a lie, which he readily conceded. I asked why he testified consistent with the lie on direct, when it was a lie, he knew it was a lie, and yet told the judge and jury that the lie was true on direct.

      He explained that as a law enforcement officer, he was entitled to lie, and the judge and jury might not credit his testimony if he admitted that it was a lie, but it didn’t matter because the law allowed him to lie and the defendant was guilty anyway.

      Lying to defendants doesn’t necessarily mean that the officer will perjure himself on the stand. But then, when the lie works and satisfies everybody, why create problems? It’s not like anybody will know, or the defendant isn’t guilty anyway.

    • Greg Prickett
      1 April 2016 at 10:06 am - Reply

      I’m sorry Judge, but lying on the reason for the stop is not any different than lying to the judge or to the jury.

      I don’t have a problem with an undercover officer lying to save his life–that is different, it involves self-preservation.

      The other lies are all the same, they are for convenience. They may be legal in some cases, but they are still lies.

      I used to interrogate suspects, say in a string of burglaries, and put a manila folder down that had lifted fingerprints in it that were not connected with the case. I would then ask the suspect if there would be any reason that his fingerprints would be at the scene of the burglary. Some of them would visibly wilt and confess.

      They confessed over a lie. I would freely admit to it in court. But it doesn’t change the fact that it was a lie, nor does it make it make the lie moral.

      It is, however legal.

      The problem is that once you allow police to lie, the line gets fuzzy. That’s why police don’t have a problem with lying to you, as a judge, about the use of a Stingray (as Andrew noted, below).

      • shg
        1 April 2016 at 10:33 am - Reply

        Kinda reminds me of the old Rumsfeld quote:

        There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don’t know. But there are also unknown unknowns. There are things we don’t know we don’t know.

        If you don’t know they’re lying, then they’re telling the truth. And if you don’t believe they would lie, then they’re not lying.

  • Andrew Fleischman
    1 April 2016 at 9:19 am - Reply

    But who’s to say that the judge will ever get to learn the true reason for the stop? After all, officers were instructed for years to lie to judges about Stingrays. The ability to fabricate the reason for a stop can frustrate justice by concealing the true, potentially illegal means by which wrongdoing was discovered.

    And if I’m conflating, at least I’m not alone! In this case, a Florida judge briefly expressed reservations about finding a police officer credible when he admittedly lied to perform a search.

    http://static1.1.sqspcdn.com/static/f/634737/18502466/1338479045930/OrderGrantingKnockandTalkSuppression.pdf?token=pjIXcEF718MuaWK%2FqMM3Ww5jy8M%3D