Does The Fourth Amendment Apply To Us?

 

Seven years ago, I became one of many cyclists subjected to “phantom law syndrome:” A police officer pulled me over, claiming that I violated a law that didn’t exist. Whether he mistakenly believed the law existed (like the driver who claimed that I shouldn’t be driving on “her” street because a nearby street had a bike lane) or simply made it up, I hadn’t, in any case, violated it!

I got to thinking about that incident when I heard about another cyclist whom the police stopped.

Nearly a decade ago, Lance Rodriguez, then 20 years old, was riding his bike in Far Rockaway—a neighborhood I often ride through.  A passing cop thought he saw something “bulky” in Lance’s pants. (Make what you will of that statement. I won’t judge you for having a dirty mind!) To be fair, that “bulky” thing was indeed a gun. 

One thing was arguably unfair:  Rodriguez was arrested and served two years in prison.  In contrast, Bernhard Goetz shot four young Black men whom he claimed were trying to rob him. One was paralyzed. Goetz served eight months of a one-year sentence for possessing an illegal gun, but was acquitted of the attempted murder, assault and reckless endangerment charges.

Another unfair aspect of Rodriguez’s arrest and incarceration, according Hannah Kon, it is that they probably wouldn’t have happened had he been driving a car, or in some other space. Not to mention that, according to Kon—who represented him in his appeal—his imprisonment disrupted the career he was starting as a chef.

A majority of judges on the Court of Appeals agreed with Rodriguez’s contention that his Fourth Amendment rights (to not be searched without “probable cause”) were not respected because, in essence, he was more exposed and vulnerable to force on his bicycle than he would’ve been in a car.

The minority of judges who voted against the decision claim that it will keep police from conducting the searches that are sometimes necessary in order to prevent crime. Kon disagrees:  “Police can still pull over anyone on the road who’s violating a traffic law.  Including cyclists,” she noted. “They can pull over anyone on the road who they reasonably suspect who has committed or is about to commit a crime. The decision doesn’t change any of that.”

The decision—or more precisely, Rodriguez’s arrest and incarceration beg the questions of what “probable cause” is—and whether it means something different for cyclists from what it means for drivers or—dare I say it—for white or non-white cyclists. Or, more to the point, will police officers continue to find “probable cause” on cyclists—especially those of us of color—because they can, because we’re more exposed and vulnerable? 

Oh, and will “probable cause” continue to include alleged violations of phantom laws?