We all are familiar with the police officer tail-lighting or asking to be let in, then drugs appear and the suspect gets cuffed: the classic frameable offense, the refutation of the utility of possession crimes.
Consider a far nastier situation, perhaps the epitome of the urgency of unrelated evidence: now say you are the police officer, and you find a likely sex slave in the back seat, who can’t answer your questions straight and for whom there is no record of free existence immediately prior. Is her presence in this car indicative of the guilt of the driver?
Consider the possible situations:
- The woman isn’t actually a sex slave, just high generally
- The woman isn’t a sex slave, but is involved in some other criminal activity as victim or perpetrator
- The woman is a sex slave, trafficked by the driver or his associates (the driver could be in the gang or could be himself coerced – a typical Central American gang practice)
- The woman is a sex slave, but the driver is a taximan who has no direct knowledge or involvement in the prostitution
- The woman is a sex slave, and the police officer staged it
Recall why you would want to disallow evidence found of unrelated crimes:
- Prevent economically wasteful fishing expeditions
- Frustrate mass surveillance as the entry point to civilian harassment
- Increase the difficulty of framings, as you would have to build up a separate conspiracy to get the pretext for a warrant sufficient to qualify the evidence of the more serious crime
(Assuming of course the just law) If police only initiated searches with cause, and never framed anyone, you would not be so concerned about these problems. But that isn’t what happens, so warrant requirements help limit those abuses.
In the general case, such as in drug possession, clearly those above statements are not good assumptions. But are there specific cases or situations where we could make those statements?
Consider the other side of establishing a prison state: you build the prison state to make it impossible for people to commit any serious crimes without getting caught. If completely applied, this also would apply to police officers. Hence a police officer also could not frame people.
Could we build a prison state or apply similar restrictions, to prevent all law enforcement/prosecutors/etc. from framing people? They also are citizens, so the constant surveillance would not be a good trade.
Consider further the two non-framing hypotheses of direct crime: you already don’t know that the driver is the perpetrator. Hence the discovery of the sex slave is the beginning of the investigation, but it’s not the end, and in order to convict the driver, you have to connect him to direct knowledge of or action in the situation – and you only know that after your investigation. So the discovery of the sex slave can get you a warrant, but it does not usefully admit the sex slave’s presence in the car as evidence.
Consider a variation: that we have a clearly murdered body in the backseat. To make the situation clearer, let us say that the body is uncovered, so the wounds are evident without any manipulation.
How does the driver explain himself?
- I was driving her to the hospital (if he was speeding, a good option, quite credible)
- She got shot in a drive-by or other armed attack (also justifying speeding and generally reckless driving)
- She shot herself (you’re freaked out and not driving well as a result)
- Somebody forced me to put the body in the car
To frame the difficulty, let us consider an alternative situation: a body is found in a backyard. You don’t have the same obvious knowledge of the body’s existence in the case of the house’s occupants – the body could have been dumped. How are you going to tie the occupants to the crime? Your usual forensic techniques: unless you get lucky and have some circumstantial evidence tie the suspects to the victim (which if you know the victim, eventually you would have found anyway, just the suspects’ proximity happens to make them more likely), you are going to have to find the prints, hairs, DNA, guns, shell casings, etc. to tie the occupants to the body.
The only thing that you get by finding this body in the car is that you know the driver knew there was a body back there. It doesn’t tell you who killed the victim or how. If the driver gives you the wrong reason (for example suicide with no gun in the car), you wouldn’t even have confidence that the driver did it, because why would the driver offer such a garbage alibi? If the driver is rational (e.g. not high), the obvious explanation is coercion, and to unravel that, you are going to have to do an investigation.
In the end, if you find no evidence to confirm any alternative hypothesis, or generally to implicate the driver, then there is a decision rule that determines whether this is a possession crime: will you convict the driver of murder, having a body in the car, to whom he has no ties, physical or circumstantial?
Consider how a driver counteracts the coercion: you are dealing with an individual who is willing to use a gun to kill people. Therefore you have stated at the least, that any taxi driver or professional out and about, needs to be packing heat to keep gangsters from dumping bodies in the back seat. You will have to give them a protocol of how they escape from gang pressure, or somehow taint the gang members to mark them.
Likewise, in the case of the sex slave, you would be asking the taxi driver to interrogate the victim.
In other words, if you provide a meaningful protocol to avoid guilt, you are deputizing the taxi driver. He has a gun and he does investigations and he takes people to the station. He may as well write parking tickets while waiting for fares.
If you don’t give him a protocol, he’s just hoping to avoid law enforcement.
Hence the question of whether you could consider the body in the back to be reliable, is the same as whether you trust the driver in the first place. That is the definition of unreliable evidence.