You Wouldn't Like Them When They're Angry

When courts review an encounter between a cop and a member of the public to see whether the Fourth Amendment prohibition against unreasonable searches and seizures has been breached, they do so by evaluating the "totality of the circumstances."  That is, facts that, taken in isolation might appear innocent, can be given a not-so-innocent meaning when evaluated in context.  As a result, it's hard sometimes to say just what behavior will get you in trouble with cops and what won't.

To take just one example, in US v. Foreman, 369 F.3d 776 (4th Cir. 2004), a driver was pulled over based in part on the driver's "lack of eye contact" with the officer.  The court upheld the stop, but one of the judges noted (citations omitted):

[The officer's] instant reliance on [the driver's] lack of eye contact is at odds with the government's stance in other cases, in which officers attempt to ground reasonable suspicion — and sometimes successfully do so — on the fact that an individual looks or stares back at them.

In other words, it's hard sometimes to figure out just how to behave when there's a cop about.

One thing, however, is for certain - if you make a cop angry, you will most likely regret it.  As noted legal theorist Chris Rock once explained in a related context, if you make the cops chase you, you can be damned sure they're bringing an ass kicking with them.  Similarly, YouTube is littered with clips of drivers who, during a traffic stop, piss off the officer and wind up getting tasered (or worse) for their sin.

This came up most recently in one of the odder crimes to circle the Web, the theft of electricity.

Earlier this month, a Georgia man plugged his Nissan Leaf into an outlet on the outside of a school to recharge.  According to the man, he did this while watching his son play tennis at the school courts.  Later, rather famously, he was arrested for theft for stealing what appears to be, about, five cents worth of electricity.

Putting to one side the whole issue of whether this is either really a crime or, if it is, one that warrants 15 hours worth of detention after arrest, consider the police version of events.  In it, an officer responds to a 911 call and found the car hooked up at the loading dock.  Then:

a man on the courts told the officer that the man playing tennis with him owned the vehicle. The officer went to the courts and interviewed the vehicle owner. The officer's initial incident report gives a good indication of how difficult and argumentative the individual was to deal with. He made no attempt to apologize or simply say oops and he wouldn't do it again. Instead he continued being argumentative, acknowledged he did not have permission and then accused the officer of having damaged his car door.

* * *

Given the uncooperative attitude and accusations of damage to his vehicle, the officer chose to document the incident on an incident report. The report was listed as misdemeanor theft by taking.

The emphasis is mine.  You'll rarely find it so boldly stated - this guy got charged with a crime because he was an asshole to the cop.  Granted, it's never wise to argue with a cop, particularly if it looks like he's not going to write you up for anything (if you get pulled over and the cop says you were doing 75 and you were only doing 73, if he's going to let you off with a warning why argue the point?), but that's still not a really good basis to charge someone with a crime, either.

Having said that, sometimes you can be too nice.

In Ohio, an officer pulled over someone for going 45 in a 35 zone.  As a court later related:

Patrolman Haslar approached Fontaine’s vehicle, advised him of the reason for the stop, and then requested his driver’s license, proof of insurance, and registration, which Fontaine immediately provided. Patrolman Haslar further stated that, during this exchange, he became suspicious of criminal activity. Specifically, Patrolman Haslar testified as follows: 'While speaking to Mr. Fontaine I felt that his body language and his behavior was a little bit unusual. He was extremely — like almost overly polite, and he was breathing heavily at times while I was talking to him.'

Calling this "reasonable suspicion" (the lowest measure of evidence needed to justify a search), the officer patted down the driver and a second officer arrived with a drug dog.  Some pot and a gun were found in the car and the driver was arrested.

Thankfully, the trial court suppressed that evidence.  Even more thankfully, the appeals court shot down an appeal by the state, agreeing that being "overly polite" and breathing heavily weren't enough to constitute reasonable suspicion.  Still, the fact that it was even arguable shows how far down the rabbit hole we've gone when it comes to the Fourth Amendment.