"But don't worry about that kind of crap. I shouldn't have mentioned it anyway because I'm basically an optimist. I always see the glass half full not half empty. Some policemen predict that the courts will eventually strip us of all our right to search incident to arrest, but that would cripple us. I don't think it will happen. I feel that one of these days the Chief Sorcerer in Washington and his eight little apprentices will get themselves together and all this will be straightened out."
The class tittered and Roy felt himself becoming irked. Harris just couldn't resist criticizing the Supreme Court, thought Roy. He hadn't heard any instructor discuss the law without taking a few shots at the Court. Harris seemed reasonable but he probably felt obligated to do it too. So far, all of the cases Roy had read, that were so bitterly opposed by the instructors, seemed to him just and intelligent. They were based on libertarian principles and it seemed to him unfair to say such thoughtful decisions were unrealistic.
"Okay you guys, quit leading me off on tangents. We're supposed to be talking about searches incident to a lawful arrest. How about this one: Two officers observe a cab double-parked in front of a hotel. The fare, a man, gets out of the front seat. A woman comes out of the hotel and gets in the rear seat. Another man not with the woman walks up and gets in the back seat with the woman. Two policemen observe the action and decide to investigate. They approach and order the occupants out of the cab. They observe the man remove his hand from the juncture of the seat and back cushion. The officers remove the rear cushion and find three marijuana cigarettes. The man was convicted. Was the decision affirmed or denied by the appellate court? Anyone want to make a guess?"
"Denied," said Guminski, a thin, wiry-haired man of about thirty, whom Roy guessed to be the oldest cadet in the class.
"See. You guys are already thinking like cops," Harris chuckled. "You're ready to believe the courts are screwing us every time. Well you're wrong. The conviction was affirmed. But there was something I failed to mention that contributed to the decision. What do you think it might be?"
Roy raised his hand and when Harris nodded, Roy asked, "What time of day was it?"
"Good," said Sergeant Harris. "You might've guessed, it was an unusual hour. About 3:00 A.M. NOW on what grounds could they search the cab?"
"Incident to a lawful arrest," said Roy, without raising his hand or waiting for Harris to nod.
"Who were they arresting?" asked Harris.
Roy was sorry he had responded so quickly. He realized he was being trapped. "Not the defendant or the woman," he said slowly, while his mind worked furiously. "The cabdriver!"
The class burst out laughing but was silenced by a wave of Harris' nicotine-stained left hand. Harris bared his large brownish teeth in a grin and said, "Go ahead, Fehler, what's your reasoning?"
"They could arrest the cabbie for double-parking," said Roy. "That's a violation, and then search incident to the lawful arrest."
"Not bad," said Harris. "I like to see you people thinking even when you're wrong."
Hugh Franklin, the broad-shouldered recruit who sat next to Roy at the alphabetically arranged tables, chuckled louder than Roy felt was necessary. Franklin did not like him, Roy was certain. Franklin was an all-American jock strapper. A high school letterman according to the conversations they had the first few days in the academy. Then three years in the navy, where he played baseball and toured the Orient, thoroughly enjoying himself, and now to the police department, when he couldn't make it in Class D professional baseball.
"Why is Fehler wrong?" Harris asked the class, and Roy became annoyed that the entire class should be asked to attack his answer. Why didn't Harris just give the reason instead of asking everyone to comment? Could it be that Harris was trying to embarrass him? Perhaps he didn't like having a recruit in the class who took the trouble to do independent study in criminal law and not just blindly accept the legal interpretations which evolve from the police point of view.
"Yes, Isenberg," said Harris, and this time Roy turned around so that he would not miss Isenberg's annoying manner of answering questions.
"I doubt that the search of the cab could be justified incident to the arrest of the driver for double-parking," said Isenberg carefully, his dark-lidded black eyes moving from Harris to Roy and back to the instructor. "It's true the driver committed a traffic violation and could be cited, and a traffic ticket is technically an arrest, but how could you search the cab for contraband? That has nothing to do with a traffic violation, does it?"
"Are you asking me?" said Harris.
"No sir, that's my answer." Isenberg smiled shyly, and Roy felt disgust for Isenberg's pretense at humility. He felt the same toward Plebesly and the diffidence he showed when someone expressed admiration for his athletic prowess. He believed them both to be conceited men. Isenberg was another one, he knew, who was just discharged from the army. He wondered how many men joined the Department because they were simply looking for a job and how many like himself had more serious motives.
"Was the search incident to the arrest of anyone?" asked Harris.
"No, I don't think so," said Isenberg, clearing his throat nervously. "I don't think anyone was under arrest at the time the officer found the contraband. The officer could detain and interrogate people under unusual circumstances at night according to _Giske v. Sanders,__ and I don't think there was anything unreasonable in ordering them out of the cab. The officers had a justifiable suspicion that something unusual was going on. When the defendant reached behind the seat I think that might be construed as a furtive action." Isenberg's voice trailed off and several recruits including Roy raised their hands.
Harris looked at no one but Roy. "Go ahead, Fehler," he said.
"I don't think the officers had the right to order them out of the cab. And when were they arrested, after they found the narcotics? What if they would have got out of the cab and just walked away? Would the officers have the right to stop them?"
"How about that, Isenberg?" asked Harris, lighting a fresh cigarette with a battered silver lighter. "Could the officers stop them from walking away, before the contraband was found?"
"Uh, yes, I think so," said Isenberg looking at Roy, who interrupted him.
"Were they under arrest then?" asked Roy. "They must have been under arrest if the officers could stop them from walking away. And if they were under arrest what was their crime? The marijuana wasn't found for several seconds after they had them already under arrest."
Roy smiled indulgently to show Isenberg and Harris there were no hard feelings at having proved Isenberg wrong.
"The point is, they were not under arrest, Fehler," said Isenberg, addressing Roy directly for the first time. "We have the right to stop and interrogate. The person is obliged to identify himself and explain what's going on. And we can resort to any means to make him submit. Yet we haven't arrested him for any crime. If he explains what's going on and it's reasonable, we release him. I think that's what _Giske v. Sanders__ meant. So in this case, the officers stopped, interrogated, and recovered the marijuana during their investigation. Then and only then were the suspects placed under arrest."
Roy knew from Harris' pleased expression that Isenberg was correct.
"How could you prove someone else hadn't dumped the marijuana behind the seat?" asked Roy, unable to dull the sharp edge on his voice.
"I should've mentioned that the cabbie testified to cleaning out the back of the cab earlier in the evening because of a sick passenger who threw up back there," said Harris. "And no one had been in the back seat until the woman and the defendant got in."
"That certainly makes a difference," said Roy, appealing to Harris for some concession to his interpretation.
"Well, that wasn't the issue I was concerned with," said Harris. "It was the question of searching prior to an actual arrest that I wanted someone to bring out of this case, and Isenberg did it beautifully. You all understand, don't you?"
"Yes sir," said Roy, "but the case woul
d certainly have been reversed if the cabbie hadn't testified to cleaning out the back that same evening. That was certainly an important point, sir."
"Yes, Fehler," Sergeant Harris sighed. "You were partly right. I should've mentioned that, Fehler."
AUGUST 1960
Chapter 4
HUERO
SERGE GAVE HIS SHOES a quick buff, threw the shoe brush in his locker, and slammed the metal door. He was late for roll call. It was two minutes after four o'clock. Damn the traffic, he thought. How can I put up with this traffic and smog for twenty years? He paused before the full-length mirror, alone in the locker room. His brass buttons and Sam Browne needed polish. His blue woolen uniform was so lint covered it looked hairy. He cursed as he realized there might be an inspection tonight.
Serge picked up his notebook, the packet of traffic citations and a map book of city streets. He shoved his shiny new five-cell flashlight into the deep pocket of his uniform pants, grabbed his baton, and put his hat on, since his hands were too full to carry it. The other night watch officers were talking noisily as he entered the roll call room. The watch commander's desk was unoccupied. Serge was relieved to see that he too was late and by the time he arrived five minutes later, Serge had dabbed most of the lint from his uniform with a piece of two-inch-wide masking tape which he carried in his notebook for such emergencies.
"After those new uniforms are cleaned a few times you won't have so much trouble with lint," said Perkins, the desk officer, a nineteen-year policeman now on light duty while recovering from a serious heart attack.
"Oh, yeah," Serge nodded, self-conscious of his brand-new, never cleaned blue uniform, announcing that he was one of the rookies just graduated last week from the academy. He and two members of his class had been assigned to Hollenbeck. It wasn't hard to see how they had been selected, he thought. The other officers were Chacon and Medina. He had heard in the academy that most officers with Spanish surnames ended up in Hollenbeck Division but he had hoped he might be an exception. Not everyone recognized Duran as a Spanish name. He had been mistaken for German and even Irish, especially by people who couldn't believe a Mexican could be fair, freckled, and speak without a trace of a Spanish accent. The Negro officers were not all assigned to the Negro areas; he was irked that the Chicanos were all stuck here in Hollenbeck. He could see the need for Spanish-speaking officers here, but nobody had even bothered to see if he could speak Spanish. It was just "Duran to Hollenbeck," another victim of a system.
"Ramirez," said Lieutenant Jethro, settling his long sagging body in the desk chair and opening the time book.
"Here."
"Anderson."
"Here."
"You're working Four-A-Five."
"Bradbury."
"Here."
"Gonsalvez."
"Here."
"Four-A-Eleven."
Serge answered when his name was called along with his partner for the night, Galloway, whom he had not worked with since arriving in the division. He was scheduled off tomorrow, Sunday, after working six days, and wished he weren't. Every night was a new adventure and he smiled as he realized he would probably be glad for days off soon enough. He tired of everything quickly. Still, this was a more interesting job than most. He couldn't honestly think of one he'd like better. Of course, when he finished college, he might find something better. And then he had to smile again at himself. He had enrolled in two night classes at East Los Angeles Junior College. Six units. Only a hundred and eighteen to go, and here I sit dreaming about finishing college, he thought.
"Okay, here's the crimes," said the lieutenant, after calling the roll. Perkins took the lineup board downstairs to the teletype machine to be forwarded to Communications, so that Communications downtown would know which cars were working in Hollenbeck. The policemen opened their notebooks to a fresh page, and got ready to write.
Lieutenant Jethro was a loose-skinned, sallow man with a hard mouth and very cold eyes. Serge had learned however that he was the division's best-liked supervisor. The men considered him fair.
"Had a robbery at twenty-nine twenty-two Brooklyn Avenue," he read mechanically. "At Big G restaurant. Today, 9:30 A.M. Suspect: male, Mexican, twenty-three to twenty-five years, five-five to five-six, hundred sixty to hundred seventy pounds, black hair, brown eyes, medium complexion, wearing a dark shirt and dark pants, carried a handgun, got eighty-five dollars from the cash register and took victim's wallet and I.D.... Goddamn it, that's a shitty description!" said Lieutenant Jethro suddenly. "This is what we were talking about last night at roll call training. What the hell good does a description like that do you?"
"Maybe that's all they could get out of the guy, Lieutenant," said Milton, the burly baiter of supervisors who always took the last seat of the last table in the roll call room, and whose four service stripes, indicating twenty years service, entitled him to a constant barrage of sarcasm directed at the sergeants. He was usually pretty quiet around the lieutenant though, Serge thought.
"Bullshit, Milt," said Jethro. "This poor bastard Hector Lopez has been hit a half dozen times this year. I'm always seeing his name on robbery, burglary, or till tap reports. He's become a professional victim, and he usually gives an outstanding description of the suspect. It's just that some officer--in this case, it was a day watch officer--was in a big hurry and didn't try to get a decent description. This is a good example of a worthless piece of paper that can't be any use to the detectives. That description could fit twenty percent of the guys on the street right now."
"It only takes a few minutes extra to get a decent description the dicks can work with," Jethro continued. "How did the guy comb his hair? Did he have a moustache? Glasses? Tattoos? A distinctive walk? How about his teeth? His clothes? There's dozens of little things about clothes that might be important. How did he talk? Did he have a gravel voice? Did he have a Spanish accent? How about that gun? This report says handgun. What the hell does that tell you? I know goddamn well Lopez knows the difference between an automatic and a revolver. And was it chrome plated or blue steel?" Jethro dropped the papers disgustedly into the folder. "We had lots of crimes last night, but none of the suspect descriptions are worth a shit so I'm not going to read them." He closed the folders and sat back in his chair on the ten-inch platform, looking down at the policemen of the night watch. "Anything you guys want to talk about before we have an inspection?" he asked.
A groan went up at the mention of the word 'inspection,' and Serge rubbed the toe of each shoe on the back of his calves, irritated once more at the Los Angeles traffic which prevented him from arriving at the station early enough to shine them.
Jethro's colorless eyes glinted merrily around the room for a moment. "If no one can think of something to say, we might as well get started with the inspection. We'll have more time to look a little harder."
"Wait a minute, Lieutenant," said Milton, a wet stump of cigar between his little teeth. "Give me a second, I'll think of something."
"Yeah, Milt, I don't blame you for wanting to stall me," said Jethro. "It looks like you shined those shoes with a Hershey bar."
The men chuckled and Milton beamed and puffed from the end seat at the last row of tables in the rear of the squad room. On his first night in Hollenbeck, Milton had informed Serge that the last row of tables belonged to _los veteranos__ and that rookies generally sat toward the front of the room. Serge hadn't worked with Milton yet, and was looking forward to it. He was loud and overbearing but the men told him he could learn a lot from Milton if Milton felt like teaching him.
"One thing before inspection," said Jethro. "Who's working Forty-three tonight? You, Galloway?"
Serge's partner nodded.
"Who's working with you, one of the new men? Duran, right? You two check those pin maps before you go out. They're killing us on Brooklyn Avenue about midnight. We've had three window smashes this week and two last week. All about the same time, and they're grabbing quite a bit of loot."
Serge loo
ked at the walls which were lined with identical street maps of Hollenbeck Division. Each map bore different colored pins, some to indicate burglaries, the multicolored pins indicating whether they occurred on morning, day, or night watch. Other maps showed where robberies were occurring. Still others showed locations of car thefts and thefts from vehicles.
"Let's fall in for inspection," said Lieutenant Jethro.
This was Serge's first inspection since leaving the academy. He wondered where fourteen men could line up in the crowded room. He saw quickly that they formed one rank along the side wall in front of the pin maps. The tall men fell in toward the front of the room so Serge headed for the front, standing next to Bressler, who was the only officer taller than himself.
"Okay, you're supposed to be at attention," said the lieutenant quietly to a policeman in the center of the rank who was muttering about something.
"At close interval, dress right, dress!"
The policemen, hands on right hips, elbows touching the man to the right, dressed the rank perfunctorily and Jethro didn't bother to check the line.
"Ready, front!"
When Jethro inspected him, Serge stared at the top of the lieutenant's head as he had been taught in boot camp six years ago when he was eighteen, just graduated from high school, broken-hearted that the Korean War ended before he could get in it and win several pounds of medals which he could pin to the beautiful Marine Corps dress blue uniform which they didn't issue you and he never got around to buying because he grew up quickly under the stunning realities of Marine Corps boot camp.
Jethro paused a few extra seconds in front of Ruben Gonsalvez, a jovial dark-skinned Mexican who, Serge guessed, was a veteran of at least ten years with the Department.
"You're getting rounder every day, Ruben," said Jethro in his toneless unsmiling voice.
"Yes, Lieutenant," answered Gonsalvez and Serge did not yet dare to look down the line.
the New Centurions (1971) Page 3
