Police, The Fourth Amendment, Qualified Immunity

Judge Ellen Lipton Hollander believes the policeman and his K9

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Case: Leftridge v. Matthews, Dist. Court, D. Maryland 2013

What happened: In this case, it appears that yet another police K9 unit gave a false alert on a vehicle. In this case, after what woud appear to be a false alert, the policeman claimed to find marijuana on the floor of the suspect’s vehicle, but decided not to bring charges. Here is how the Judge dealt with the false alert and the plaintiff’s allegation that if there was marijuana in the vehicle it was because the police planted it:

In a final sally with respect to his Fourth Amendment claim, Leftridge argues that the deputies “planted” the marijuana residue that they claimed to have found on the floor of the vehicle. However, I agree with defendants that, under the circumstances, this allegation is so inherently implausible as to call for summary dismissal under Aschroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2008). As defendants point out, it would make no sense whatsoever for a law enforcement officer to plant trace amounts of a controlled substance in a vehicle subject to a traffic stop, only to let the driver go with a warning to fix his brake lights.

Comments: Personally, I think this is a badly flawed analysis of human behavior and the operative incentives for policemen. Why would a policeman plant trace amounts of marijuana? So that he does not, at the margin, get a complaint or a civil lawsuit. At least some civilian suspects would not complain in an attempt to avoid charges on the marijuana. And this is true even if especially when the marijuana has been planted. And policemen know this.

When you stop and think about it, the Judge’s assertion that there is no reason that a policeman would plant marijuana and then not charge criminally on it is even more absurd. If the policeman planted the marijuana, then the last thing that policeman wants is a full blown criminal trial. If the policeman did plant, and it somehow turns out that the defendant has money, then the defendant might hire a good defense lawyer and prove the planting. Chances are that the defendants are not rich. Chances are that none of the video cameras on the scene caught the planting. However, a policeman would be foolish to take those chances. For an evil policeman, the safest course of action is to plant, but no more than a trace amount, with the idea that the scare of the trace amount will keep the traffic stop out of both civil and criminal courts.

Disclaimer: I am not saying that the policeman did plant the marijuana. It is even possible (although I think unlikely) that the K9 really did alert based on the trace amounts the policeman claims to have found. What I am saying is that this should have gone to the jury because the Judge shows herself, with her own words, to be a poor judge of human motivations and incentive-based behavior. This is exactly why we have jury trials in the first place.

Written by Burgers Allday

October 11, 2013 at 7:37 am

Posted in Uncategorized

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