Archive for the ‘Police’ Category

On November 5, I posted here about Florida v. Jardines, in which the U.S. Supreme Court would decide this question: when a police officer takes a dog trained to sniff for drugs onto the porch of a home to sniff the air coming from under the door of a house, does this action constitute a search under the Fourth Amendment?  If the answer was yes, this would mean that police would need a warrant from a court before bringing the dog up to the door.  In past cases, the Court had given police considerable leeway to use dogs; no warrant had been required before having the dog sniff a piece of personal luggage (the Place case is here) or a package addressed to someone (the Jacobsen case is here).

The Court has now issued its opinion in Jardines: bringing a drug-sniffing dog up to a home is a Fourth Amendment search, and requires a warrant.  The author of the opinion was Justice Antonin Scalia, which may surprise those who think of Scalia as the author of the Court’s most conservative cases.  But it should not shock anyone.  The case follows the pattern of one of Scalia’s opinions from 2001: Kyllo v. U.S.  In Kyllo, the police used a thermal imager on a home; the device detects patterns of heat, and the police used it to see considerable excess heat coming from the defendant’s home, which indicated the presence of a marijuana growing operation inside.  According to Scalia, this required a warrant because the target was a home, which is where people conduct their most intimate activities.  The imager, used from outside, was designed to detect activity inside.  Any method of “seeing” inside the home, Scalia said, requires the judicial oversight of a warrant obtained prior to the search.

Scalia used some of the same reasoning in Jardines.  Yes, the dog was outside the home.  And it is true that many non-family members have implicit permission to come onto the porch of the home, right up to the door: letter and package carriers, delivery people, and even police officers wanting to talk to the homeowner.  But the dog is there specifically to detect activity inside the home, and that is more like the thermal imager than someone delivering mail.  Folding this reasoning around the Court’s rediscovered interest in the law of trespass,  Scalia said the presence of the dog is an intrusion that the Fourth Amendment doesn’t permit without a warrant.

Jardines does not put dog sniffs of homes off limits to police.  Rather, police must first demonstrate to a judge that they have probably cause to believe that there is criminal activity the dog could detect inside the house.  Probable cause  is one of the lower legal standard in the law; it does not require anything close to proof beyond a reasonable doubt.


In a post last week, I discussed the choice of a new chief of police in Pittsburgh.  Nathan Harper, the Chief of the Bureau for seven years, had been forced to resign by Mayor Luke Ravenstahl amidst an ongoing FBI investigation into police department finances.  (Mr. Harper has not been charged; the investigation continues.)  Then, just days later, the Mayor announced that he would not run for re-election in November.  With all of this happening, I was among a group of people who testified before the City Council last week on the selection of the new chief.  There was broad agreement on a central point: outgoing Mayor Ravenstahl should not appoint a new chief.  Instead, an acting chief should serve until the next may makes the permanent appointment.  The Pittsburgh Post-Gazette reported:

Pittsburgh Mayor Luke Ravenstahl said Monday that he would not appoint a permanent chief to the embattled police bureau during his remaining 10 months in office and instead will leave the choice to his successor.  “It wouldn’t be fair in my mind to the next mayor to not have him or her have the chance to choose their chief, especially given all the recent activity around the bureau,” he said.

According to a story on WESA FM, Pittsburgh public radio, Ravenstahl said he would not appoint the next chief because with ten months left in his term, the decision would be “extremely rushed” and therefore should be left to his successor.

Whatever the reason, I think this is a good decision.  I can’t conceive that we would be able to attract top-quality candidates for the post knowing that the administration will change in the next year.  Who would take the job under those circumstances?  One reader suggested appointing a new chief as soon as possible, and writing a contract that would essentially guarantee the new chief a term that would extend into the new mayor’s term even if the mayor didn’t like it.  But that won’t work.  The chief (as I imagine is true in most places) serves at the pleasure of the mayor as a matter of law.  No contract can change this.

Thus the naming of the new chief will have to wait for the outcome of the mayoral election.  In the meantime, the federal investigation continues, and more revelations appear in the press by the day.  The only thing for sure is that the next chief is likely to start with a mandate for clean up and change.


On Feb. 20, Pittsburgh Police Chief Nathan Harper resigned at the request of Mayor Luke Ravenstahl.  Harper quit amidst a federal investigation of corruption allegations involving police department contracting and possible misuse of funds from unauthorized bank accounts.  (Harper has not been charged with any wrongdoing.)

Pittsburgh now faces a situation that cities all over American face periodically: the selection of a new chief.  In Pittsburgh, the mayor makes the selection, but as you would guess, many people are voicing their opinions on what matters in the selection of the new chief.  All of this became even more complicated when, just days after forcing Harper’s resignation, Mayor Ravenstahl unexpectedly abandoned his bid for re-election.  (The Mayor denied that the investigation played any part in his decision; he has not been charged.) So at this point we have an acting chief, a lame duck Mayor serving out the remaining ten months of his term, and an unresolved investigation.

On March 6, Pittsburgh’s City Council will hold a public hearing on the choice of the new chief; I have been invited to give testimony.  Here are a few of the points I’ll make.

Pick now, or wait?  Given that we know we will have a new mayor in less than a year, Mayor Ravenstahl should strongly consider staying with an acting chief, and allowing the new mayor to select the new chief.  Since there is a reasonable chance that the new mayor will simply prefer to have his or her own chief running the department, we should wait.

Insider or outsider?  Candidates from inside and outside the department each have their advantages.  Insiders would know the lay of the land, and would bring continuity.  An outsider would bring fresh eyes to the situation and might be more willing to make needed changes.  Ultimately, it depends on whether we think the department should continue heading down the same path, or should get a fresh perspective from the top down.  I would hesitate to rule out any excellent inside candidate, but with the ongoing investigation, a fresh perspective seems necessary.

Integrity is paramount.  With the ongoing scandal, nothing is more important than restoring the reputation of the agency in the eyes of the public.  For that reason, the next chief must be not only a very good police officer and a strong leader, but a person of unquestioned integrity.

Experience is key.  This is not the time for someone to learn on the job how to be a chief and an administrator.  Whoever is picked should have experience as a chief or deputy chief in a department that is at least half the size of Pittsburgh’s.  The person should also have experience working with communities in the city to meet their goals, and an unquestioned commitment to working as partners with citizens as part of real community policing.

Diversity in the ranks.  I’ve been working with the Pittsburgh Police command staff for some years, as well as a number of other departments in our county.  There is universal agreement among them that their agencies do not have sufficient racial, ethnic, or gender diversity.  There is strong disagreements about how to become more diverse. Nevertheless, the next chief must bring a rock-solid commitment to diversity in the ranks, and a willingness to closely re-examine current recruitment and hiring practices.

Process cannot be ignored.  The search should be real (not wired for an insider), and must be nationwide.  And it should include input from a citizen’s advisory board formed for this purpose, which would interview all of the final candidates and give the mayor feedback on them.

Those are my six crucial considerations.  What would yours be?

An article in today’s Wall Street Journal titled “Police Tool Targets Guns” says that the NYPD has taken delivery of a “T-Ray” scanner: a device that can detect weapons concealed under heavy clothing.  The device “detects terahertz radiation, a high-frequency electromagnetic natural energy that is emitted by people and can penetrate many materials, including clothing.”  The scanner “sees” the shape and size of the weapon against the body of the person carrying it, because the material of which any gun is made does not emit terahertz radiation like the human body.

NYPD Commissioner Ray Kelly said the police were very “hopeful” about the potential of the device.  While the current version of the tool is “about the size of an old-style projection television,” the NYPD would like to see the technology reduced in size so that it is “small enough to carry on an officer’s gun belt.”  Privacy advocates raised some concerns, but also expressed hope that the device could make the NYPD’s controversial stop and frisk program unnecessary — or at least less intrusive.

All very interesting — but to me, this isn’t new.  In 1996, I published an article called “Superman’s X-Ray Vision and the Fourth Amendment: The New Gun Detection Technology” in the Temple Law Review.  (The official citation is 69 Temple L. Rev. 1.)  The article highlighted a nascent technology: a device that could scan people for millimeter wave radiation, emitted by all human bodies.  The device used the radiation to produce images of weapons hidden under heavy clothing.  The article explained the technology, described how police could use it , and explored the ways that the device would fit into the Fourth Amendment and other aspects of the law.   Here’s a small slice:

[R]esearch and development efforts have begun that would give police officers something very much like Superman’s x-ray vision. Two private companies and one government laboratory, each with its own design, have started work on technology that will allow police officers to “see” through clothing to detect whether a person is carrying a concealed weapon. The idea is to produce a commercially and technologically viable device that could do an “electronic frisk” of a suspect from a distance of ten or twenty feet.

So, here we are — back to the future.  The millimeter radiation technology never achieved what researchers hoped for in terms of portability — they could never make it  small enough to be handheld — or in terms of use at a a distance.  Perhaps the terahertz technology will do better in both respects.  Assuming it does, the terahertz devices will face many of the same Fourth Amendment, legal, and privacy issues  that I pointed out almost twenty years ago.

In my next post, I’ll discuss what some of those issues are.

On Wednesday, January 10, I was interviewed on public radio in Pittsburgh about the legal aspects of the rape case in Stuebenville, Ohio, which is now in the news nationally and worldwide.  The wide-ranging 30-minute discussion on Essential Pittsburgh, WESA FM public radio’s news program, covered the role of social media in bringing the case to light, the progress of the police investigation, the role of the hacker group, Anonymous, and legal versus moral obligations to report crimes.  Click here to get to the audio; my interview is under the heading “Law and Order.”  You can also hear the comments of Rachel Dissell, a reporter from the Cleveland Plain Dealer who has been covering the case, under the heading “Assignment: Steubenville.”

In yesterday’s post, I discussed the New York Timesarticle reporting that behavior profiling efforts at Logan Airport in Boston seem to have mutated into racial profiling.  Reuters has now picked up the story, too.  It seems that some  (not all) TSA agents at Logan who were trained in behavior assessment techniques have turned, instead, to the discredited tactic of stopping and searching people based on racial or ethnic appearance.  The goals of the program also seemed to have shifted: from spotting potential terrorists to looking for garden-variety criminals.  Why did it happen?

Yesterday I discussed one reason: a failure of leadership.  The TSA managers in charge of the program seem to have not gotten the message that profiling based on race or ethnic appearance does not work, but that behavior profiling does.  Today, I’d like to highlight another reason: an obsession with numbers to show results.  “[M]anagers’ demands for high numbers of stops, searches and criminal referrals had led co-workers to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems,” according to the Times.  In order to get the numbers, some TSA agents at Logan fell back on the same old profiling tactics: “They just pull aside anyone who they don’t like the way they look — if they are black and have expensive clothes or jewelry, or if they are Hispanic,” according to one TSA officers who complained.

When the pressure to produce numbers in order to show effectiveness drives police or security work, bad things happen.  We see this in New York City right now and for the last few years, with precinct commanders’ fixation with producing ever-higher numbers of arrests, citations, and stops driving police officers to stop and frisk more and more people every year, despite the fact that crime is falling New York and has been for some time.  The evidence of this pressure to “get the numbers” burst into the open with the wide press coverage of NYPD commanders telling officers they had to make stops and frisks, whether those actions did any good or not.

Numbers-driven police work produces no real progress toward public safety.  And it can push out or even destroy efforts to use more effective tactics.  That’s what seems to have happened at Logan.

For further explanation, look for my next post.


In “Racial Profiling Rife at Airport, U.S. Officers Say,” the New York Times say that the behavior profiling program at Boston Logan Airport, designed as way to effectively ferret out potential terrorists, has morphed into racial profiling.  How did this happen?

I’ve argued for years that racial profiling is a bad idea.  Even putting aside moral questions, the substantial social costs of the practice, and the like,  it simply does not work.  Contrary to common assumptions, using race or ethnic appearance as one factor (among others) in deciding who to stop, question, frisk, etc., does not result in more efficient, productive police work.  Instead, it handicaps police, resulting in fewer seizures of drugs and guns and fewer arrests.  The title of my 2002 book,  “Profiles In Injustice: Why Racial Profiling Cannot Work,” says it all.   Instead, law enforcement should use behavior profiling: sophisticated, precise systems of spotting behaviors that indicate wrongdoing, regardless of racial or ethnic appearance.  I discussed the success of behavior profiling in my 2005 book, “Good Cops: The Case for Preventive Policing.”  Behavior profiling originated with the Israeli aviation security system.  In my interview with Rafi Ron, who had for years headed Israel’s aviation security, he told me that the Israelis had abandoned appearance-based profiling, because it was too easy to beat.  Behavior profiling — for instance, looking for minute changes in behavior that come with concealing a weapon or an explosive — works well when it is part of a multi-layered security effort and includes comprehensive training and close supervision.

After 9/11, it was Rafi Ron himself who was brought in to construct the first behavior profiling program: at Logan Airport, in Boston.  So what are we to make of the Times report? How did this happen?

There are several clues in the article, and I’ll discuss each in a separate post.  Let me start with this: the people in charge still believe that racial profiling will help them get more bad guys,  and they’re looking not only for potential terrorism but also for garden-variety crime.  According to the Times, “passengers who fit certain profiles — Hispanics traveling to Miami, for instance, or blacks wearing baseball caps backward — are much more likely to be stopped, searched and questioned for “suspicious” behavior.”  Pressure from TSA managers led TSA agents ”  to target minorities in the belief that those stops were more likely to yield drugs, outstanding arrest warrants or immigration problems.”

Apparently, the TSA folks running the behavior profiling program didn’t get the message, or preferred to ignore it: Behavior profiling works, when done correctly; racial profiling fails, and must be avoided.  So some of those agents under their supervision responded by using racial profiling.  In other words, this is, first and foremost, a failure of leadership.

Other reasons for this failure follow shortly.