The Charlotte News

Friday, September 16, 1938


Site Ed. Note: For the other editorial of this date, maintained separately for its inclusion in the 1941 book, What America Thinks, see "Sauce for the Gander".

The apparent transnihalation by the editorial below of distinctions between "Mr. A" and "Mr. B" is probably rectifiable to most attorneys familiar with the criminal law, even if not to Mr. Cash--though familiar he was with most things. He should have lived so long to talk to us.

For we could have explained to him that the criminal law has developed around search and seizure, wise or not, that with respect to automobiles or other circumstances deemed exigent under the law, standards are relaxed with respect to the necessity of officers to obtain warrants to search the vehicle or person. The rationale for the laxity of the rule is that evidence is otherwise likely to disappear, given the transient nature of the automobile and its occupants, balancing that with the inconvenience and questions of safety for both officer and motorist alike in having to detain a person for a prolonged period on a roadway while a magistrate is summoned up to issue a warrant. Thus, in the auto stop, all that is necessary is a reasonable, articulable suspicion of unlawful conduct and a search may be made with or without the consent of the motorist, or, in this case, a passenger in a vehicle. That suspicion or some observation by the officer of direct evidence of criminal conduct, such as bottles of a substance contained in such manner as to give the appearance of being spirituous inebriants, those having been deemed illegal by Mecklenburg County ordinance of the time--(today, the container would have to be open, i.e. seal broken, to be illegal)--, that reasonable suspicion, or plain view observation of direct evidence, would be necessary to justify the search. Otherwise it could only be done with the consent of the occupant or by warrant obtained, also based on reasonable, articulable suspicion. (See for instance, Terry v. Ohio, 392 US 1 (1968), and Mapp v. Ohio, 367 US 643 (1961), and cases cited therein.)

So what is reasonable, articulable suspicion? All we really know is that each case pretty much turns on its own facts and the judge's view of them, (so best not have incriminating stuff on you in the first place), but cannot be simply a hunch of the officer or based on some vague description of a suspect broadcast over the dispatch from some crime occurring outside the immediate presence of the officer, say a suspected fleeing burglar or robber whose identity is broadcast as "two black males in a white Ford". More would be needed to justify a search of the suspects and the vehicle than merely two black males in a white Ford. A matching license number or significant portion thereof, same color vehicle, same or approximate year and model, specific identifying characteristics of the occupants such as clothing, some combination of those factors, or some actual observation by the officer of a weapon or activity at the point of stop indicating the suspects are hiding something under the seat, (but more than "furtive gestures"), observation of criminal activity beyond a mere traffic violation, etc., would be required to justify such a search. The stop itself requires less than the search but still requires some reasonable basis, which can be as simple as a busted tailight--so watch your tailights.

With an immobile residence, the analysis runs that the suspects are less likely to be able to flee the scene or dispose of incriminating evidence and time is thus available to obtain the warrant. Even there, exigent circumstances, such as fleeing suspects from a robbery who have just arrived home while the officers are in pursuit, coupled with something else usually such as the sound of flushing toilets indicative of destruction of evidence or the known presence of weapons, might provide the necessary exigent circumstances without a warrant to enter and search. But minimally, absent true hot pursuit or ongoing criminal activity, a shootout for instance, knock and notice are required, that is a knock on the door and identification as police officers. Usually, however, absent such exigent circumstances, officers are required to have a warrant to enter a residence. The law is much more concerned about the traditional security in the castle than in the motorcar, even if the motorcar has been king for a hundred years.

Then, when consent is provided, the propriety of consent plays an issue, too, where, for instance, a landlord or manager of a motel permits entry to an apartment or room, or some legal occupant other than the suspect of the particular premises sought to be searched does so. The issue becomes whether the suspect had a reasonable expectation of privacy in the area searched, a rule governing warrantless searches generally.

And, even if provided by the suspect, was the consent coerced? "I've never seen one these. Heard about 'em, but a little before my time. Edsel, you say? Yeah, like that. Real nice. Bet she goes fast. Never seen a trunklid so big. I'll give you a hundred bills, if you'll just give me a peek inside that big old trunklid, pardner."

Too, with respect to drunken driving searches and seizures of the suspected inebriate, implied consent laws enter in on the basis of your having given your implied consent by virtue of having obtained your license for the privilege, not right, to drive on the highways, (lesson: read the fine print), to a field sobriety test, actually no deviation from the general rule, as the search and seizure must also, as usual, be conducted on reasonable, articulable suspicion of driving while impaired, though the stop as usual need only be for the usual. But once stopped on reasonable suspicion--weaving your way home, you know, even if only because you're tired, not spirituously inebriated, or because your tailight is out and once stopped, your mouthwash happens to smell like rum--if you don't cooperate in the test, you lose your license based on that fine print you didn't bother to read or heed. And even then once you've pleasantly acquiesced to the request of the officious intermeddler to your pleasant journey, don't scratch off in irritation after passing the alphabet cleanly, 'cause he then may stop you again for reckless driving, fair or no. No, say, "Thank you, Occifer, good day. Sorry, speech impedimentation, you know." (Actually, come to think of it, best just nod while you're ahead and leave quietly. Else, that recently swirled mouthwash might become the basis suddenly for more articulable suspicion.)

Also, officer safety plays an issue in searches. Stops with probable cause on the street or incident to an arrest for unlawful activity may trigger a limited lawful search of the person of the suspect for weapons only. But there the officer is permitted only a limited patdown search and search of items within immediate reach of the suspect, such as pocketbook or briefcase, not invasive searches, just far enough to determine the absence of weapons. Even there, cases arise as to whether small penknives or small caliber weapons might be concealed in tiny pouches, etc. Again, reasonable expectation of privacy balanced against officer safety will be the rule of thumb in court. So again, caveat emptor applies.

And the doctrine of the "fruit of the poisonous tree" enters the picture sometimes, that is where the officer starts into a search illegally but finds something incriminating. Did the genesis of the search originate in temptation outside the rules governing proper searches? The Scope, one can later prove, really didn't at all smell like rum, and no erratic driving was observed aforehand, just didn't like the fancy car cruising in the neighborhood like that, looked suspicious--and, during the field sobriety test, observed a baton in the surly man's left hip pocket which felt was surely a dangerous weapon, and so, arrested the suspected inebriate, who though sober by the breathalizer results, had in possession deadly weapon. If so, sorry, Mr. Copper--too much knowledge can sometimes prove a dangerous thing. Whether the baton was truly a dangerous weapon intended for use by the prevailing circumstances as such or whether its possessor was, as he said, a band leader on his way to beat the band, we need not inquire, for the search began with Eve, and thus its subsequent revelations were therefore much too much circuitously serpentine. Get 'em next time on properly articulable suspicion, and based on something more than "a known purveyor of spirituous inebriants".

Then, all of these rules are subject to the officer's good faith in conducting the search. The cynical say then that it depends on whether the officer actually finds something incriminating in the search as to whether the search will be held in "good faith", but that is stretching things, at least before the honorable and faithful jurist. Still, in theory at least, the basic rules apply, especially in the residence, "good faith" meaning something subjectively believed and reasonable to the officer at the time, still more than mere hunch, although perhaps less than objectively reasonable after the fact. Out on the street, however, is another kettle of fish entirely. The rule there is be cool, watch with those furtive gestures, dude and dudess. (See the recent 2005 film, "Crash", for further elucidation.)

So there you have it, Mr. Cash--your distinction between the at-home, luxuriating, castle-bound, hapless drunk or purveyor of the drink kept behind the expected privacy of the trap door in one's tourist camp, Mr. A, and unfortunate taxicab passenger, Mr. B. Mr. B, in other words, lawfully gets stung while Mr. A must typically remain, absent a properly drawn warrant properly circumscribed in scope of search, a Myster A, at least vis á vis the cops--only question remaining, not elucidated below, being how the cop got to peeking in the cab in the first instance.

That's what you get, Mr. C, for having quit law school after only a year. We know, we know. It required too much mendacity. But, there is good to be done, too...

Childhood's Happy Hours

Of the 142 children under fourteen who were held in North Carolina jails during the first six months of this year,

Two were charged with arson;

One was charged with rape;

One was charged with prostitution;

Five were charged with selling liquor;

One, not yet ten, was charged with making liquor.

One More Paradox*

When Olin Johnston lost the Senatorial nomination to Cotton Ed Smith, the report got around that he was to be consoled with a cushy Federal job.

When Little Davey Lewis lost the Senatorial nomination to Mi-Laird Tydings, the report got around that he was to be consoled with a cushy Federal job.

Jim Pope lost the Idaho Senatorial nomination to Worth Clarke, and Sidney Dutcher reported in yesterday's News that he would be consoled with the chairmanship of the Federal Power Commission or the Federal Communications Commission, whichever McNinch didn't want. Dutcher also reported that Maury Maverick, defeated Texas New Dealer, could have any job he chose in Washington, but probably would take a Federal post in Texas in order to keep an eye on his fences.

Day before yesterday, George handed a whitewashing to the New Deal's Lawrence Camp in the Georgia primary. Camp is already a Federal district attorney, so that he has his consolation. In fact, he swung onto it throughout his effort to get a better job.

For a crowd that talks High Idealism and service to the people, these New Dealers seem, by all reports, to have a mighty strong feeling of proprietorship over plums and pork and patronage.

The Odds Against Hull

It is yesterday afternoon, the chauffeur waits with the Rolls Royce, the runabout, at the foot of the winding escalator, and here we sit in our chromium-plated tower thinking on about that poor man Cordell Hull. If ever the times ran out of joint for a mortal, it is this gentle Tennessee statesman. The pattern, the whole substance, of his political philosophy is that the way to cure the unrest in the world is to multiply world trade. On that hypothesis, he set out to erect on the ruins of American trade, inherited from previous Republican administrations, a foundation for more and freer trade. And just when he seems to be getting somewhere, with the prize of a trade treaty with England almost in his grasp, the whole of Europe puts aside the thought of ordinary business and starts angrily talking war.

Nor is that the first rude interruption Mr. Hull has experienced. A trade treaty almost consummated with Italy had to be discarded because of Mussolini's condition that the Ethiopian conquest would have to be recognized. At that point, he came up against the granite in Secretary Hull's nature and his hatred of war and oppression. Carefully prepared groundwork for better Pan-American relations, trade and cultural, has been disordered by Mexico's socially-conscious decision to play an avaricious Robin Hood, and the undermining of the Fascists in South America constantly jeopardizes his hopes there.

And throughout his tenure as Secretary of State he has had to contend, of course, with an administration that often changed its course and always must have filled him with consternation at being a vital part of it. But State's man has gone plugging ahead, enjoying the respect and the confidence of people of all views and classes. Incidentally, it has been announced that in two years one of the trade treaties has increased United States exports to the Netherlands from 81 millions to 154 millions, making of that tight little Dutch nation our fourth best customer.

Exit Herr Henlein

The country on this earth which is most tolerant of opinion against the government and activities approaching downright subversion is none other than our own United States. Freedom of speech and peaceable assembly and the right of the people to bear arms and to be secure in their person--all are set down in the constitution. But likewise set down in the constitution is this limit beyond which no dissenters may go:

Treason against the United States shall consist only of levying war against them, or in adhering to their enemies, giving them aid and comfort.

By this or any other definition the proclamation of Konrad Henlein, Sudeten Party leader, was treason. He called down God's blessings, a plea which he routed by Berlin, on the Sudetens' fight to "return to our home in the Reich." Preceded, as it was, by the most overt acts of defiance against Czech authority, by a free access to military supplies and Nazi paraphernalia over the German line, by a constant running to and from consultations with Hitler to consultations with the Prague Government, by pitched battles with the Czech police and military detachments--preceded, in fine, by rebellion against the Czechs, Herr Henlein's proclamation was treason in any language. It has so been declared and a warrant on that charge issued for the proclaimer's arrest.

Site Ed. Note: This retraction applies to "A Couple of Notes", September 13, 1938. Since neither piece mentions any names in the first instance, we see no harm for educational purposes in leaving the original as it was.


The News is convinced, after a thorough investigation, that its statements in an editorial about an unnamed special deputy sheriff whose commission was revoked upon allegations of his having used his authority wrongfully to collect rents and fees, were not based on conclusive evidence and that its assumption that the deputy had been "flim-flamming" tenants was drawn from information presenting only one side of the case. The News, therefore, wishes to retract its statements and to apologize to the person concerned.

Mr. A Keeps His Liquor,
Mr. B Loses His

These are the cases of a couple of gents who ran afoul of the liquor law. With the little reader's kind permission, and with eminent precedent, we shall call them Mr. A and Mr. B.

Mr. A was arrested last December and charged with possessing 15 pints of liquor, which was found behind a trap door at his tourist camp. It looked as though Mr. A was either selling liquor or drinking it very secretively. But when his case came up in County Recorder's Court, it was dismissed and Mr. A told that he might claim the evidence and depart. He did, not quite understanding it all but greatly relieved.

The explanation was that the officer who searched Mr. A's premises had failed to provide himself with a warrant sworn to under oath. According to the law, he had committed a misdemeanor, but the law was new and only half understood, and so nothing was said about that phase of it. But the evidence was ruled out.

Mr. B was arrested last week in a taxicab with a couple of short half-gallons of white liquor in his possession. The officer who arrested him had no search warrant at all, not even one improperly drawn up. According to opinion from the State's attorney general, the evidence is admissible and Mr. B will have to be punished. He won't get his two "shorts" back, either.

The two cases don't make sense. All a layman can get out of them is that it is better to make a search and seizure without any sign of a warrant than with one not made out according to the law.


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