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?

Edward Adkins: A Victim of Phantom Law Syndrome

During one of my many rides to Point Lookout, I was riding between a traffic jam and the shoulder of Lido Boulevard, just west of the Meadowbrook Parkway entrance.  As I recall, it was a weekday, so I wondered why there so many cars along the Boulevard headed away from Point Lookout. 

I soon had my answer.  Just past the high school, a truck crashed--apparently, from swerving.  The light turned red; I stopped.

"Ma'am.  Get over here!"  I didn't think the burly man in a suit was yelling to me--until he scuttled in front of me.

"I'm talking to you!  When I say come, come!"

"Why?  You're not my father!"

"Don't get cute with me!"

"As if I could..."

"Listen, I don't wanna arrest you..."

"For what..."

"Never mind.  See that truck over there."

I nodded.

"Well, there's a guy on a bike under it, with his skull crushed.  Doesn't look like he's gonna make it."

"Oh, dear..."

"Listen, that coulda been you!"

"Well, I'm careful."

"Well, you were riding carelessly."

"How so?"

"You were riding between cars..."

I wasn't, but I didn't argue.  Then he lectured me about bicycle safety, pointing out that he was a "bicycle safety officer" for the local police department.  I had the impression that everything he knew about bicycle safety, he learned from one of those movies they used to show kids back in the days of "air raid drills".

"That's against the lore (translation:  law), ya' no'."

Then he ordered me to take off my sunglasses.  "Doesn't look like yer under the influence."  Squinting, I slid them back onto my face.

"Where do ya live?" he demanded.

"Astoria."

"You rode all the way from Queens?"  Again, I nodded.

"Well, at least you're wearing a helmet.   The guy under the truck wasn't."

Silence.  Then, "Listen, be careful. I really don't want you getting hurt.  And remember...don't ride between cars.  If I see you doin' that again, I'll hafta write you up."

Later, I looked up the traffic and bicycle codes for the town where I encountered that officer.  I couldn't find any prohibition against riding between cars.  Nor could I find any such regulation in county codes or New York State law. An attorney I contacted called that officer's assertion "nonsense".

Now, the officer I encountered that day may have been upset after dealing with a cyclist who got his head crushed under a truck. Or he may have been having a bad day for some other reason, or had some sort of unspecified rage--or a more specific animus against cyclists, or me as an "uppity" (at least, in the eyes of someone like him) female.  

Or he may have just been suffering from what I call "Phantom Law Syndrome".  

To be fair, police officers aren't the only ones prone to PLS. Lots of people think there are, or aren't, laws against one thing or another in their jurisdiction.  So, they might break a law without realizing it, or keep themselves from doing something because they believe, incorrectly, that there's a law against it. Or they might accuse someone of breaking a law that doesn't exist.

Also--again, to be fair--laws change.  Sometimes they're struck down, aren't renewed or replaced with other laws. Or  they're passed with little or no fanfare.  So, it's not inconceivable that some officer or detective wouldn't be aware of such changes.

I was reminded of those things, and the encounter I've described, when I came across the sad saga of Edward Adkins.

Edward Adkins

Nearly two years ago, a police officer saw the Dallas native riding his bicycle, sans helmet, in his hometown. Apparently, the constable didn't realized that the city's ordinance mandating helmets had been struck down, at least for adults, a few months earlier.  Adkins, 46 years old, lives off odd jobs and didn't have $10 to pay the fine.  

Now there is a warrant for his arrest, which he can pay off--for $259.30.  

Now, I am not a lawyer, and I certainly am not familiar with the police or courts in Dallas.  Still, I can't help but to think that there must be a way to lift the warrant--and to void the ticket because it shouldn't have been issued in the first place.

Even if he has such recourse, though, I imagine it would be very difficult for Adkins to pursue.  After all, doing so would take time and money that he, apparently, doesn't have. 

It also doesn't help Adkins that, in addition to being poor, he is black and lives in a neighborhood comprised mainly of people like him.  Living under such circumstances leaves you even more vulnerable to police officers and other authorities with PLS.  For that matter, laws that actually do exist for such things as wearing helmets and against such things as riding on the sidewalk are more often, and more strictly, enforced in poor minority neighborhoods than in other areas.   I have witnessed it myself:  Not long ago, while riding through the East New York section of Brooklyn, I saw three officers grab one young black man who rode his bike on the sidewalk while a young white couple pedaled through a red light.

Now that I think back to that encounter with the "bicycle safety officer" on Lido Boulevard, I can't help but to wonder how it might've turned out if I'd been darker and poorer (or, at least, riding a bike that wasn't as nice as the one I was riding)--or if I hadn't been wearing a helmet, whether or not one was mandated.