Defending The Police (1/24/00)
I've always butted heads with local law enforcement because I happen to be a stickler for civil rights. I require the rules to be followed, the Constitution be defended, and oaths be honored. If an illegal search requires that a local doper goes free, I have no trouble in opening the door. The Fourth Amendment, after all, is far more important than any individual case.

That being said, I couldn't help but shake my head when I read a recent letter to the editor in the Fort Worth Star Telegram authored by Sgt. R.L. Krouse of the Fort Worth Police Department.  He wrote to defend the North Richland Hills Police Department after that agency had been taken to task in yet a different letter to the editor. The letter that Sgt. Krouse took issue with criticized the NRHPD for "trampling on the Fourth Amendment" when that agency executed a search warrant for drugs on a home that led to the death of one the home's occupants, Troy Davis. (By the way, the man died over marijuana). Krouse, armed with years of criminal law experience I suppose, wrote the following under the headline "Defending the Police":

"Dave Bastyr of Carrollton [in his letter to the editor] bemoaned the trampling of Fourth Amendment rights . . . . Bastyr forgot that the U.S. and Texas constitutions allow entry into a residence on issuance of a search warrant by a magistrate, based upon probable cause. I do not know how much experience Bastyr has in establishing probable cause, but I have plenty."

I loved the last phrase, "I have plenty", especially in light of the next amazing line that he wrote.

"To obtain permission to enter a citizen's home, officers must prove to a magistrate, beyond any doubt, that what the expect to find will indeed be located".

With all due respect to the officer, I can't tell you enough how wrong that statement is. Even the casual reader, who has never so much has read the Fourth Amendment, can detect a problem. According to the sergeant, "probable cause" means proof "beyond any doubt".

No! Not even close.

Probable cause to believe something exists means, not surprisingly,  that it probably exists. To put another way, it means "more likely than not".  Even simpler, if you had a trick coin that was guaranteed to turn up heads 51 out of 100 coin flips, you would own a coin that "probably" will turn up heads with every flip.  Yes, it can be said that there is probable cause to believe the coin will show heads when flipped.

What's even more disturbing is the use of the phrase "beyond any doubt".  No where, and I mean no where, in our criminal justice system is there a burden of proof placed upon the State that requires proof "beyond any doubt". Heck, even jurors in a death penalty case do not have to be convinced to that degree. In fact, if search warrants could only be issued on proof beyond all doubt, rest assured there would never be a single warrant issued.

I don't mean to be rough on Sergeant Krouse (I'm sure he's a great guy), but is is incumbent upon officers to know the applicable standards they must apply when interacting with defendants. (As a side note, if an officer is going to be wrong, I prefer them to incorrectly increase their burden like Krouse did). After all, the law is made up of only words. The distinction between "probable cause", "reasonable suspicion", "temporary detention", "arrest",  "encounter", and "seizure" can make or break a case.  An officer should always strive to learn and refresh his memory, and perhaps be willing to humbly admit that there might be some aspects of search and seizure law that he doesn't know. I make that admission every day.  

Simply having "plenty" of experience is not enough.

Barry Green is the District Attorney for the 271st Judicial District.

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