Scanning the Heavens

I teach constitutional criminal procedure.  Every day I talk with students about examples of how the desire to control crime results in an on-going tension with individual rights.  About how police frequently minimize the rights of citizens; minimize due process in order to “catch the bad guys.”   The classic “due process v. crime control” dilemma is one that plays out thousands of times every single day.    And I tend to get riled up when I encounter examples of police officers breaking the law - ignoring the Bill of Rights - in doing their job.    

Yet, for a long time, when I came home from work, I would find myself being entertained by television shows which featured cops doing the exact same thing I criticized them for in class.   Oh, they were more glamorous for sure — I mean come on, I have never seen a cop look anything like NCIS: Los Angeles’ Danella Ruah.   But they did the same thing.  I remember watching “The Closer” in an episode where Kyra Sedgwick’s character masqueraded as a defense attorney to illicit information from a witness.   Or the season premiere of Hawaii 5-0, where the entire cast broke about fifteen laws in order to demonstrate the innocence of McGarrett.   The examples run wild, and occur in almost every single episode of every crime show.  

The problem with this is that these television shows educate the public; they shape and form public opinion about good police-work; even though by definition, it is NOT good police work.   Ironically, Justice William O. Douglas wrote a dissent about this very issue — in a case from 1959!!  Read what he had to say in Draper v United States (358 US 307).

Decisions under the Fourth Amendment, taken in the long view, have not given the protection to the citizen which the letter and spirit of the Amendment would seem to require. One reason, I think, is that wherever a culprit is caught red-handed, as in leading Fourth Amendment cases, it is difficult to adopt and enforce a rule that would turn him loose. A rule protective of law-abiding citizens is not apt to flourish where its advocates are usually criminals. Yet the rule we fashion is for the innocent and guilty alike. If the word of the informer on which the present arrest was made is sufficient to make the arrest legal, his word would also protect the police who, acting on it, hauled the innocent citizen off to jail.

Of course, the education we receive from mystery stories and television shows teaches that what happened in this case is efficient police work. The police are tipped off that a man carrying narcotics will step off the morning train. A man meeting the precise description does alight from the train. No warrant for his arrest has been-or, as I see it, could then be-obtained. Yet he is arrest; and narcotics are found in his pocket and a syringe in the bag he carried. This is the familiar pattern of crime detection which has been dinned into public consciousness as the correct and efficient one. It is, however, a distorted reflection of the constitutional system under which we are supposed to live.

With all due deference, the arrest made here on the mere word of an informer violated the spirit of the Fourth Amendment and the requirement of the law, 26 U.S.C. (Supp. V) § 7607, 26 U.S.C.A. § 7607, governing arrests in narcotics cases. If an arrest is made without a warrant, the offense must be committed in the presence of the officer or the officer must have “reasonable grounds to believe that the person to be arrested has committed or is committing” a violation of the narcotics law. The arresting officers did not have a bit of evidence, known to them and as to which they could take an oath had they gone to a magistrate for a warrant, that petitioner had committed any crime. The arresting officers did not know the grounds on which the informer based his conclusion; nor did they seek to find out what they were. They acted solely on the informer’s word. In my view that was not enough.

Douglas was writing more than half a century ago - at a time when television was still in its first decade!  

So, I decided to make a conscious choice.   I went cold turkey on cop shows.   I went into the timers on my Dish Network DVR, and deleted every single one.  No more Hawaii 5-0, no more NCIS, no more Criminal Minds.  And on, and on..   The shows with cops that I kept included Eureka and Haven (which are really science fiction / fantasy shows).    I My television viewing went down - although my Netflix usage of my favorite science fiction offerings did seem to fill the gap a little.     And now almost eight months later, I can’t say I miss a single one of them.