headband, large enough to conceal a Beretta pistol. And a water bottle had been manufactured with three parts that unscrewed from one another: The top and bottom contained water, but the middle, its contents hidden by the label, could hold drugs.
Brennan liked to illustrate the intersection of police technique and case law by telling the tale of a twenty-one-year-old woman named Robin Nurse, who caught his eye with her purposeful stride through Union Station, off a train from New York at 12:30 a.m. She wore no rings, no necklace, no earrings. She walked past stores, staring straight ahead. Brennan followed her, then approached her, identified himself, and asked where she was going. To visit a friend, she said. And where did the friend live? On 145th Street, the woman answered. Oops, wrong city; there’s no 145th Street in D.C.
She averted her gaze, and her answers seemed evasive. She had bought her ticket with cash, which police interpret as an attempt to conceal identity. An ID card she produced could be purchased, he knew, and he later testified that he had “never seen one that was legal.” Brennan asked to search her tote bag. She refused. He had no probable cause to arrest her, so he told her that she was free to go but that her interview gave him grounds to detain her bag. She could wait until he got a drug-sniffing dog to check her bag, and if the dog smelled drugs he’d get a warrant to search it, or he’d give her a receipt for it and if it contained no contraband she could return and pick it up.
“She said, ‘I’m staying with my bag, and I’m going to sue you.’ I said, ‘OK, well, that’s fine. You have every right to, but I think I have enough from all your answers to have a dog check your bag.’ And she had some terrible answers.”
When he sent his partner for a dog, she changed her mind. “She decides, ‘I’m not staying with my bag, I’m leaving.’ I said, ‘OK, that’s fine. You’re free to go.’
“So, a cab driver who was standing nearby says to her, ‘Ma’am, did you want a cab?’ She says, ‘Yes, I do. I want to go to—’ and she looked at me right like this, she said, ‘I’ll tell you when we get in the cab.’ ” That was enough to establish probable cause, Brennan believed. “I said, ‘Now I’m detaining you with your bag. You will stay with the bag because of yourstatement to the cab driver, “I’ll tell you where I’m going when I get in the cab.” ’ ”
Then, after a dog alerted on the bag and she was arrested, she gave consent to a search without waiting for a warrant, the court record shows; the bag contained two and a half to three kilograms of cocaine. The case was appealed as an unjustified detention, and the federal Court of Appeals for the D.C. Circuit upheld the police, finding that Brennan’s initial approach and questioning did not constitute a “seizure.” 48 “We got a good ruling,” Brennan declared.
“We followed the law so often that we lost cases because we made mistakes,” he continued. “But we always fessed up to our mistakes. In other words, if we made a mistake, we learned by our mistake.… You held the driver’s license too long; you should have gave it back quickly. Or you held the ticket too long. We’d admit it. And that’s the best law enforcement. Admit what you do wrong. And you get credibility with the courts. And that’s why my group, when I worked with them, was so successful. I had a group of detectives that were fantastic, abided by the law.”
CHAPTER THREE
Defending the System
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government
.
—Justice Robert H. Jackson
AN INDIFFERENCE TO PERJURY
H ERE ARE TWO tales of a city. The first begins during twilight, about 5 p.m. on a December evening in the nation’s capital. A twenty-four-year-old black man named Tyshaun Bullock is driving a Mercury Marquis. Three plainclothes “jump-out”
Brennan liked to illustrate the intersection of police technique and case law by telling the tale of a twenty-one-year-old woman named Robin Nurse, who caught his eye with her purposeful stride through Union Station, off a train from New York at 12:30 a.m. She wore no rings, no necklace, no earrings. She walked past stores, staring straight ahead. Brennan followed her, then approached her, identified himself, and asked where she was going. To visit a friend, she said. And where did the friend live? On 145th Street, the woman answered. Oops, wrong city; there’s no 145th Street in D.C.
She averted her gaze, and her answers seemed evasive. She had bought her ticket with cash, which police interpret as an attempt to conceal identity. An ID card she produced could be purchased, he knew, and he later testified that he had “never seen one that was legal.” Brennan asked to search her tote bag. She refused. He had no probable cause to arrest her, so he told her that she was free to go but that her interview gave him grounds to detain her bag. She could wait until he got a drug-sniffing dog to check her bag, and if the dog smelled drugs he’d get a warrant to search it, or he’d give her a receipt for it and if it contained no contraband she could return and pick it up.
“She said, ‘I’m staying with my bag, and I’m going to sue you.’ I said, ‘OK, well, that’s fine. You have every right to, but I think I have enough from all your answers to have a dog check your bag.’ And she had some terrible answers.”
When he sent his partner for a dog, she changed her mind. “She decides, ‘I’m not staying with my bag, I’m leaving.’ I said, ‘OK, that’s fine. You’re free to go.’
“So, a cab driver who was standing nearby says to her, ‘Ma’am, did you want a cab?’ She says, ‘Yes, I do. I want to go to—’ and she looked at me right like this, she said, ‘I’ll tell you when we get in the cab.’ ” That was enough to establish probable cause, Brennan believed. “I said, ‘Now I’m detaining you with your bag. You will stay with the bag because of yourstatement to the cab driver, “I’ll tell you where I’m going when I get in the cab.” ’ ”
Then, after a dog alerted on the bag and she was arrested, she gave consent to a search without waiting for a warrant, the court record shows; the bag contained two and a half to three kilograms of cocaine. The case was appealed as an unjustified detention, and the federal Court of Appeals for the D.C. Circuit upheld the police, finding that Brennan’s initial approach and questioning did not constitute a “seizure.” 48 “We got a good ruling,” Brennan declared.
“We followed the law so often that we lost cases because we made mistakes,” he continued. “But we always fessed up to our mistakes. In other words, if we made a mistake, we learned by our mistake.… You held the driver’s license too long; you should have gave it back quickly. Or you held the ticket too long. We’d admit it. And that’s the best law enforcement. Admit what you do wrong. And you get credibility with the courts. And that’s why my group, when I worked with them, was so successful. I had a group of detectives that were fantastic, abided by the law.”
CHAPTER THREE
Defending the System
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government
.
—Justice Robert H. Jackson
AN INDIFFERENCE TO PERJURY
H ERE ARE TWO tales of a city. The first begins during twilight, about 5 p.m. on a December evening in the nation’s capital. A twenty-four-year-old black man named Tyshaun Bullock is driving a Mercury Marquis. Three plainclothes “jump-out”
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