I want to thank the esteemed attorneys from Sidebar Saturdays for asking me to join them here. I feel honored, because, you see—I’m not a lawyer. Instead, I spent three decades carrying a badge and gun for a living. As a cop, I worked around lots of lawyers. Some (mostly prosecutors) were great friends. Others (mostly those who tried to keep me from putting bad guys in prison and those who made a living suing cops) were…well, let’s just say they were not friends.
I’m greatly amused when I watch TV shows and movies and read novels that constantly pit police detectives and prosecutors (deputy DA’s or whatever they’re called in other jurisdictions) against each other.
The other day, I was watching Blue Bloods, one of my favorite cop shows. NYPD Detective Danny Reagan was arguing with his sister, assistant DA Erin Reagan, about her refusing to file criminal charges on some mutt (that’s NYPD slang for what we call a suspect), even though he had no witnesses or physical evidence that tied him to the murder. That was followed by another argument because she wouldn’t give him a search warrant, even though all Danny had was rumors that the murder weapon might be in a particular apartment. Later, Erin chastised Danny for bringing her an inadmissible confession (the suspect repeatedly asked for a lawyer).
I guess there might still be police departments that promote officers to detective, who are ignorant of the law or so indifferent toward it that lawyers from the DA’s office must assume the role of guardian of civil rights to keep them from kicking in everyone’s doors and beating confessions from them. There may even be prosecutors who will only file criminal charges on slam-dunk cases to ensure their conviction rate is perfect, thus requiring noble detectives to work around them to prevent criminals from taking over the streets. Characters in those roles make for great drama, but that wasn’t my experience in the real world.
When I was first assigned to the Criminal Investigation Division as a sergeant, I had a lot to learn. I learned that California’s charging standards require DAs only to file charges on those cases that have a reasonable chance of winning a conviction in trial. That was well beyond the standard of probable cause that I needed to make an arrest. I also learned, after sitting through a few trials as the investigator, that juries aren’t about to convict a defendant based on the testimony of one only witness, especially when that witness probably had an arrest record similar to that of the man standing trial.
By the time I made it to homicide two years later, I had a good understanding of what it took to get a conviction, and thus what evidence DAs needed to charge my cases. Unlike what might be the situation with some East Coast cities, in Oakland, CA, I seldom talked to a deputy DA about a homicide case I was investigating until I had the suspect in custody and was seeking criminal charges. And unlike Danny Reagan, I wouldn’t even ask a prosecutor—not even my sister—to file charges on a murder suspect unless I had several good witness or other compelling evidence that would convince a jury the suspect was guilty. Why would I want to get a murder suspect charged when he was likely to be found not guilty in trial?
I got a good chuckle when Erin Reagan turned Danny down for a search warrant, because no cop in a modern police department, much less an experienced detective, would think they could get a search warrant without probable cause. But I was also jealous, because in Oakland, investigators had to type up the affidavit and search warrant paperwork and take it to a judge for authorization and signature. I wish I could’ve walked into the DA’s office, asked for a search warrant, and walked out with one—sort of like picking up a sandwich for lunch.
A few years into my police career, I attended a night school course on constitutional law, a requirement of the MPA (Master of Public Administration) degree I was pursuing. The instructor was an attorney and former deputy DA, who taught the course as if it were law school. When we finished the short section on search and seizure, the right to counsel, and protection against self-incrimination, he told us we just received the extent of the instruction most law schools provide in this narrow area of the law.
We spent much more time in the Oakland police academy on search and seizure and admissibility of statements than lawyers do in law school. As a homicide investigator, I worked with and applied this law on a daily basis, whereas unless lawyers specialize in criminal defense or prosecution after law school, most will never revisit those areas of the law. I needed to know the law because the consequences of making a mistake could include a murderer walking free.
After working homicide for a while, I learned that the homicide investigators knew more about this specialized area of criminal law than the average deputy DA did, so when we had a question, we went to the deputy DAs who worked in the Law and Motions unit. These were the prosecutors who argued the motions that defense attorneys filed claiming evidence was discovered during an unlawful search or a suspect’s confession was inadmissible because police coerced the admission or failed to advise him of his rights.
Since cops can’t just call up and get a search warrant the same way they’d order a pizza, they also need to know when they can search a home or person without one. And there are many exceptions to the search warrant requirement.
When I was a patrol officer early in my career, dispatch sent me to a disturbance where a neighbor heard a man beating his wife in the house next door. My partner and I pulled up and a man met us halfway down the walkway. We told him why we were there, and he told us his wife was fine and we could leave. We said we had to talk to her, and he told us we couldn’t enter his house without a warrant, followed by, “I’m a lawyer, and I know the law.”
After I insisted on seeing his wife, he pushed me as I tried to walk around him. We put him in handcuffs, entered his house, and found his wife suffering from a broken nose and fractured orbital bone. Either this lawyer didn’t know as much about the law as he thought he did, or maybe he figured he could intimidate a couple of uniforms with his bar card, but warrantless searches based on exigent circumstances (specifically called the public safety exception in this situation), are legal. Courts have decided police should not spend hours typing a search warrant affidavit and locating a judge to sign a warrant when a victim might be inside bleeding to death. Makes sense, huh?
Although prosecutors and cops battling each other in novels, movies, and TV shows provides nice conflict (and readers and viewers love conflict), in the real world, police officers are much more savvy about the law, and prosecutors are much more attuned to the realities of the streets than their fictional counterparts. I’ll continue to watch Blue Bloods and other cop shows, but I wish Danny Reagan would brush up on the law and expend his energy fighting against the bad guys instead of his sister, who has her own job to do, but is an important part of the team working to get bad guys off the street.