The Control of Crime: A Practical Demonstration

‘POLICE headquarters, special division, Sergeant Howard speaking,’ recited the sergeant as he picked up the phone. ‘Yes, sir. We’re supposed to look after gambling, streetwalkers, and blind pigs — yes. I’m sorry you think so, but we do the best we can. What makes you think he is selling hooch? At 905 Wells Street? Yes. What is your name? Well, you know we’ve got to —

‘That’s the trouble with these birds,’ he said as he hung up the receiver and turned to me. ‘They never want to be mixed up in anything. He wants us to pinch a place, but he’s so afraid somebody’ll get him for telling, he cut off as soon as I asked his name. Next time I’ll ask it first, and then he won’t complain. Funny how everybody hates to help the police.’

That was what might be called a keynote speech. I was there to learn, if possible, why the police of a big city make so many arrests that do not result in conviction — or, indeed, even come to trial. Almost daily the papers reported from fifty to a hundred or more persons, arrested for minor offenses, who were at once ‘discharged by the superintendent’ without being brought into court. Just a few days previous, over a hundred men had been arrested and brought to trial on a charge of gambling. All of them were freed by the judge — though the probabilities made them obviously guilty — with a scathing denunciation of the incompetence and overactivity of the police. I had asked the superintendent to explain, and had been told that I might watch and learn for myself. Accordingly, I had been introduced to the ‘clean-up squad,’ and they had been directed to take me wherever they went and to show and tell me anything I wanted to know.

‘That 905 Wells Street is a new dump to me, but we’ve had several complaints, so I guess we’ll have to take a chance and make it,’ finished the sergeant. Four of us climbed into an open flivver, — the police are forbidden to use curtains in any weather, for the sake of expedition in action, — and from then till two in the morning the night was full of illuminating experiences.

Number 905 was a dilapidated storyand-a-half house amid slightly better surroundings in a slum district. It purported to be a private residence. Two men went to the front door and the other, with myself, to the cluttered and malodorous back yard. We could hear from the front a vigorous tattoo and ‘Police officers; open up.’ Inside were two tables, a dozen wooden chairs, a dilapidated stove, and seven men. Bill Flockton, the host, was a plumber by trade, though his tools were elsewhere. He lived in a room upstairs; his wife was away. He had no booze, he said. The 111 pints of beer which were later found in the shed were homebrew which he had ‘made for himself.’ Five gallons of stuff that would burn when lighted with a match were unearthed from the cellar.

‘Aw, Sarge, can’t a fellow have a little hooch for his own use, when his wife has left him, without you fellows butting in?’ complained Bill.

Howard merely laughed and said, ‘We’ll save your life, Bill, by taking it from you.’

Whereat Bill himself chuckled and confided, ‘To tell the truth, Sarge, I would n’t drink the stuff on a bet. All I ever touch is the beer.’ The visitors were sent home, the liquor was properly pasted with identification labels, and Bill and the evidence were sent to the station in the wagon.

But Bill showed no worry, although his was a serious offense from the point of view of penalty. He had no need to worry, for he knew well enough what was coming. All it cost him was his stock of liquor and a night’s loss of business. Next morning he was ‘discharged by the superintendent.’ Graft, favoritism, influence, official wrongdoing of some sort on the face of it! For Flockton was indisputably guilty and should have been convicted.

The answer is that those police officers did wrong when they entered Flockton’s house without a search warrant. By the law of that State, evidence secured by the police through illegal search or illegal arrest cannot be used in any way whatsoever to convict a criminal, no matter how guilty he may be. To search a house as they did Flockton’s, even police officers must have a warrant, accurately describing the place to be searched and the thing to be looked for, issued by a magistrate upon complaint under oath. These officers had no such warrant. Not even Bill’s opening the door and his invitation to ‘go ahead, you won’t find anything’ made the search legal. The evidence of guilt was there, but it could not be used. It would have been futile to bring Flockton before the court — worse than futile, for it would have produced another public condemnation by the judge of the oppressive incompetence of the city’s police. So they let him go his way, to break the law again. They told me all this at the time, to explain Bill’s unconcern. To my disgusted inquiry why, knowing the law, they had not taken the precaution to get a warrant, the reply was as vindicatory of the police as it was profane.

Magistrates cannot issue warrants except upon sworn statement of facts from which the probability of success in the search may reasonably be deduced. ‘Information and belief’ of the person asking for a warrant is not enough; he must state facts. Nor, the courts have held, is it enough for the officer asking a warrant to swear that he ‘is informed by persons that they have purchased liquor at said place and it is a notorious fact that liquor is there sold.’ Notoriety is not an acceptable sort of fact. Moreover, the person acquainted with the facts must himself appear before the magistrate. Even his affidavit of fact, sworn to before a notary public, is not enough, though presented to the magistrate by a police officer. The warrant will not be issued — or, if a warrant should be issued under such circumstances, evidence discovered through its use could not be used.

As Sergeant Howard said: ‘Those birds who complained and cursed us out for not closing the dump would n’t even give their names, let alone appear before the judge. After they tell us, they expect us to do the rest ourselves. How in hell could I get a warrant?

‘I ‘ve got another place where I think we can get a buy,’ he continued. ‘The patrolman says that taxis keep stopping there all the time, and it ain’t likely from the neighborhood they’re on legitimate business; and there are a lot of other little signs that make it sure. The papers are crabbing, and we’ve got to get ‘em some way.’ So we picked up Jimmy — usually the department carpenter, but occasionally called on for special duty. He was really a likable, though simple, soul, but he did look like a wastrel. Jimmy was given a factory employee’s badge and told to buy liquor in one of the row of brick houses which had seen much better days. The car was kept two blocks up the street. Back came Jimmy. ‘She said, “Oh no, you ‘re mistaken— this is a private house. No, there’s no such place in the neighborhood.” But I could hear them racketin’ in the back.’

We all got out and walked to the place, Howard and myself to the front door. The bell rang audibly, but no one answered, nor was there a gleam of light. ‘ If they don’t open up in another five minutes,’ said Howard, his finger on the bell-push, ‘ I ‘ll kick in the lock.'

‘Don’t bust the door; I’ll open up,’ replied feminine tones, and we were admitted. ‘ I spotted your man; that’s why I did n’t answer,’ was her greeting. In the back rooms were three women and several men, all ‘ friends’ of Mamie’s who had just dropped in to see her. Hospitality was there, for each friend had a glass, but one social amenity had been omitted, in that not all the guests had been introduced — at least they had no idea of each other’s names.

The draft-beer could not be found, — five minutes had been enough for its hiding, — but there was an untapped keg of illegal strength. Both Mamie and the keg went to headquarters, but it was a mere jesting and friendly formality, since everyone seemed to know that she could not be held. Indeed, had she or Flockton demanded a return of the liquor, the court would probably have ordered the police to restore it.

There, then, were two arrests for that night which did not come to trial. Yet neither could be called police oppression. Both Bill and Mamie were violating the law. Whether that law be wise or otherwise, it is the law, and it would have been better for society had they been punished as the law decrees. The one arrested was guilty; the police had evidence of his guilt; but use of the evidence was forbidden. Certain unprosecuted arrests were explained.

Prostitution, with its attendant public annoyances, breeds another class of unprosecuted arrests — those which the public demands shall be made, but which there is no evidence of crime to justify. The papers had been campaigning for ‘a cleaner city.’ Where were the police, they inquired, when streetwalkers infested certain districts? ‘Get busy,’ they yammered. ‘Clean up; stop the annoyance of decent citizens.’

A large corporation had its main office-building in a district of transition from small houses to wholesale business. Its employees were tapped at from furtive windows and beckoned to from behind tawdry curtains. ‘Your police must stop it,’ they told the mayor, ‘or our influence goes against you at the polls.’ Orders went forth to the superintendent of police — from him to the clean-up squad. The inconspicuous flivver, with its four passengers, patrolled the streets apparently like any other battered car — save that it was curtainless in the dead of winter — and the plain-clothed officers strolled about. It was surprising to me how often women, talking to some man, or even walking along alone, would dodge quickly out of sight as soon as the police car appeared on the scene. Nor did any of them accost an officer— save once— while I was with them. Yet just what the hall mark was I could not determine.

Sometimes a woman who had just stopped a man was detained and the man was questioned.

‘What did she say to you?’

‘Er — er — why — that is — oh yes, she just asked me how far it is to Elm Street.’

Quite possibly the man was one of those who complained of the annoyance, but he naturally objected to appearing in court, if only because of the time it would cost him. Had he told the truth, the officers could not have used his statements secondhand; they would have had to produce the man as a witness himself. The eventuality was either that there were in truth no solicitations at all that evening or that no man told the truth.

Obviously the chance of first-hand evidence secured by the officer himself was negligible. Nevertheless we gathered in forty or more women during the evening. Some had been seen to accost a man, though we could not know what had been said. Others were known to the officers from previous experience. Some were simply strolling along and might have been, as they usually insisted, returning to their rooms from the corner post-box. Superficially the whole proceeding was an outrage on liberty, an example of aggression and oppression on the part of the police, a disgrace to civil government. Perhaps it was, in fact. My own ire at times well-nigh broke bonds and cost me my chance to observe. But sooner or later, directly or indirectly, most of those women admitted to me — who, like the rest of the public, would not tell — that they were in fact members of the profession objected to. Their complaint was seldom that they were decent women, but rather that they had not been soliciting at that particular time. So far as I could judge, those officers made no mistakes in their judgment of the women arrested, although they occasionally stopped, for questioning, women whom they did not hold.

Yet none of the women arrested was brought to trial; all of them were among those ‘discharged by the superintendent.’ Four fifths of the arrests were illegal, and the officers were technically liable in damages to the women for false imprisonment. None of the arrests was supported by evidence sufficient to warrant a conviction. Yet again, illegal though they were, they served a purpose. As one experienced young woman expressed it: ‘I came here from Chicago because I heard the town was easy, but they won’t even let you walk on the street. I’m going back.’ It was all illegal, but it accomplished in a practicable way what the public, through its papers, was insisting should be done. At any rate, that particular evening accounted for forty more arrests which were never prosecuted, yet which were police service rather than aggression.

Of the arrests which do reach the courts and are dismissed by the judge, there are various explanations. Three that came under my own observation will illustrate this point. Complaint came in of window-tapping in a certain house. We went there, one officer ahead. Someone, in fact, tapped on the glass to attract his attention, which he gave. He went in. There were three women, and each one sedulously denied that she or anyone else had called him in, or had ever tapped on the window for any purpose, or had any reason, desire, or occasion to tap on a window, or in any other way attract any man’s attention. The woman who admitted the officer was selected as the culprit and duly prosecuted. The judge’s opinion was impeccable and a model of logic. He ruled that window-tapping was a misdemeanor punishable in the courts, thereby satisfying public righteousness. He added that, to convict thereof, the police must prove, not merely that someone in the house had been guilty, but that the particular defendant had done the tapping. This quite satisfied the unrighteous, as it meant absolute impossibility of conviction so long as darkness or the usual curtain screened the face of the tapper. It may have pleased the papers also, since it perpetuated their opportunity to rail at inefficiency. The police shrugged and continued either to ignore complaints by corporations and individuals or to make illegal arrests which at least held tappers to a degree of circumspection. Since that time, in the only case I know of where a policeman has said that he saw the particular defendant do the tapping, another judge has held that the woman’s act was not unlawful. Since that decision the public must in justice direct its criticism of conditions at the law itself and absolve the police.

In that same court was pending a case which had been set for nine o’clock of that day. The State’s witnesses were from a city some fifty miles away. Five times previously the case had been set for trial, and each time the witnesses had left their business and come into court to testify. But five times, by request of the defendant’s attorney, the trial had been postponed, and the witnesses had traveled home with nothing accomplished. This day, as the morning wore on and the case was not called for trial, they rose in wrath and told the policeman responsible for the arrest that if the case were not called by twelve-thirty they were going home, to stay. He, poor go-between, so informed the judge, whose sole reply was: ‘You police have that case ready for trial when it is called.’ At twelve-thirty the witnesses departed as they had said they would. That afternoon the case was called; the State had no witnesses present; the court rebuked the policeman, dismissed the case, and discharged the defendant from custody.

One unexpected evening was devoted to the gambling-houses. The papers said they were notorious. They were — even a stranger could find them. The police made no pretense of ignorance. The places were as well known to the officers as the officers individually were known to the gamblers. The latter make a practice of sending their lookouts regularly to the courtrooms to study the faces of all detectives and witnesses called by the police. That night the off-duty crew was held over and both sergeants were on the job. The ‘State’s keys’ were loaded into the autos. I say ‘loaded’ advisedly, for those ‘keys’ were heavy sledges and axes. A search warrant naming the place to be raided was procured, and it was reassuring later to find that no warning had leaked out thereby.

The entrance was a barber-shop with one chair, and a number of empty cigar-boxes in a small show-case. The first lookout’s place was behind that counter, near a switch which he could throw with his foot. By some chance he was not at his post, and the watcher behind the partition did not catch us through his loophole till almost too late. Past him, down the corridor, went the key-bearers, around the turn, past the third guard’s loophole — but the heavy door was closed. It took a moment even with those keys to get through its four inches of wood and iron sheathing. The other officers got in first by the rear entrance, when it was incautiously opened by those inside who tried to escape. Within were a huddle of twoscore men and two large tables the size of billiard-tables — mere board flats set on trestles, covered with loosely laid cheap green cloth, with pendent lights over each table. But — and this was scarcely surprising — no gambling was in progress. Two bags of money were found, however, and many dice. On the floor was a miscellaneous collection of revolvers, pistols, and dirks, hastily shed by men who knew well enough that the carrying of concealed weapons was a felony. Young men mostly they were, who, in suspicious numbers, gave their occupation as that of taxi-driver.

All of them were taken to headquarters and booked either as gambling or as frequenting a gambling-house. The police had all the evidence there was; yet every single prosecution was dismissed by the judge, who, from the bench, reprimanded the police for bringing into court cases so inadequately supported by evidence. There, again, were many cases which came to trial but in which no conviction followed. And yet, again, they could not be characterized in any sense as police oppression.

It is obviously not difficult to learn why so many arrests do not mature into trial and conviction. To know what to do about the situation is quite another matter. The present objective of the courts and the law is to protect innocent citizens from even the possibility of mistaken molestation by the police— to discourage indiscreet activity by rendering futile all that departs front the form of stamp and seal. If incidentally it makes mockery of enforcement, that is an evil inherent in the objective. But in a period of criminal actualities it may be worth considering whether the fear is not born of misconception and imagination, and the objective a fallacy.