Defense Against the Dark Arts: A Field Guide to Fourth Amendment Sorcery

Westendorf & Khalaf is proud to present, for the first time in print, excerpts from the most closely guarded text in American law enforcement: Hocus Probablus Caucus. For centuries this leather-bound tome has been passed hand to hand in the back rooms of police academies, its incantations whispered by torchlight, its secrets shielded from the prying eyes of defense attorneys and other enemies of public safety. We have obtained a copy and reproduce portions of it here for educational purposes.

Here is the central problem facing the modern police officer. Sometimes an officer sees a person and wishes to go through his pockets, his car, his bag, wherever a man might keep his illegal secrets. But the Fourth Amendment, an annoying relic scribbled out by a handful of dead radicals, insists the officer first possess reasonable suspicion that crime is afoot. And reasonable suspicion requires the officer to point to specific, articulable facts of criminal activity. The trouble is obvious. Very often, there are no facts. There is just a guy. He is standing there. He is doing nothing remarkable.

This is where the dark arts come in. What the public does not realize, and is not meant to realize, is that the men and women who patrol our streets are not ordinary humans at all. Behind every badge stands a trained mystic. Through a process known to the initiated as constitutional alchemy, a highly trained officer can transmute the base metal of absolutely nothing into the pure gold of reasonable suspicion. Evidence is not necessary. Evidence, frankly, is for the weak. The practitioner needs only the proper incantations, recited in the proper order, ideally in a calm and authoritative tone for later use at a suppression hearing.

Below, the major spells.

Spell I: Sketchy Hoodicus (The High Crime Area)

This is a foundational incantation, taught to apprentices in their very first semester. The officer surveys the scene and declares the neighborhood a "high crime area." This is a powerful charm because it requires no proof, no crime statistics, and indeed no proof of familiarity with the neighborhood whatsoever. It works by pure assertion. Say the words aloud and everything within the surrounding area becomes imbued with suspicion.

The beauty of Sketchy Hoodicus is that it casts suspicion onto everything within a wide and undefined range. A man buying a Gatorade at the corner store is, by operation of the magic, now buying a suspicious Gatorade. A man smoking a cigarette is now smoking a suspicious cigarette. A grandmother walking her suspicious baby does so under a suspicious cloud she cannot see and will never escape. The spell does not distinguish.

The truly gifted practitioner can designate any area a high crime area, including, in a pinch, the affluent ones, by murmuring the lesser-known sub-incantation: "known to law enforcement as a high drug use area."

Spell II: Nervous Wreckus (Nervousness)

This spell is almost impossible to defend against. The suspect appeared nervous. His hands trembled. He avoided eye contact. It is a masterstroke, because it cannot be disproven and it cannot be avoided. Behold the trap:

• The suspect makes eye contact → suspiciously confrontational, possibly preparing to attack the officer.

• The suspect avoids eye contact → suspiciously evasive, classic indicator of deception.

• The suspect is calm → suspiciously calm; why is he not troubled? The serene composure of a seasoned criminal with something to hide.

• The suspect is angry → why would he not engage in pleasant repartee after being stopped for the tint on his license plate frame? A telltale marker of dangerous sociopathy.

• The suspect weeps openly → emotional volatility, an officer safety concern.

  
  

Nervous Wreckus inevitably overwhelms an opponent the instant it is cast. There exists no demeanor, in the entire documented range of human emotional expression, that defeats this spell. The only way to appear non-suspicious during a police encounter is to not be a person at all. But even a suspect learned in the dark arts himself, one capable of casting himself into a goat, a sofa, or other non-human entity, cannot escape. For the act of transfiguring into a non-human form is, of course, itself highly suspicious.

Spell III: Furtivus Fidgetus (Furtive Movements)

The furtive movement is an elusive beast. Nobody has ever seen one outside of a police report, and yet they frolic wildly through our courtrooms in great migrating herds.

A "furtive movement" is any movement of the human body. Should the body decline to move, do not panic: the failure to move is itself a furtive movement, and frankly the most suspicious kind. Reaching toward the glovebox: furtive. Reaching away from the glovebox: furtive. Shifting in the seat: furtive. Sitting perfectly still: extremely and unnervingly furtive. Breathing: rhythmic and deliberate, suggesting practiced composure while committing criminal deeds.

If your hands are visible near your pocket, you are concealing something with your stillness. If your hands move, you are reaching for it.

Spell IV: Shankus Maximus (The Blade)

The suspect "bladed" his body, turning slightly to one side, as human beings have done since the dawn of standing. To the untrained layperson, "blading" is the innocuous thing your torso does while turning. To the educated sorcerer, it is the ultimate tell. It means the suspect is concealing contraband on his hidden side. It also means, conveniently, the precise opposite, because a suspect who faces the officer squarely is being aggressive, a suspect who turns away is fleeing, and a suspect who somehow achieves a perfect neutral axis is exhibiting the unnatural stillness of a seasoned criminal. The human body has only so many orientations, and this spell, in a feat of remarkable versatility, has claimed every last one of them.

Spell V: Scaredy Officerus (Officer Safety)

The most versatile charm in the entire book, and the only spell that circularly justifies itself. It lets even the bravest officer perform feats of magic under the cloak of fear. He need only intone that he "feared for his safety," and the fear, invisible and unmeasurable, becomes an object of unquestionable legal weight. No weapon need be present. No threat need be made. The fear is self-authenticating.

Observe its Stephen Curry-like range. The fear justifies the frisk, the handcuffs, the order out of the car, the order to stay in the car, the backup units, and the forty minutes the encounter somehow required until a K-9 happened to arrive. A frightened officer may do nearly anything. And the trained practitioner is, at all times, terrified.

Spell VI: Spideysensus Bullshitificus, THE MASTER OF ALL INCANTATIONS (Training and Experience)

"Based on my training and experience…"

These six words are the Infinity Gauntlet of Fourth Amendment law. One snap and your motion to suppress turns to dust. Spoken aloud, they transform an ordinary man with ordinary eyes, ordinary ears, and an ordinary nose into a being of near-supernatural perception. Where you see a vague bulge, the sorcerer sees a firearm. Or a crack pipe. Or a bag of narcotics. Possibly all three at once, nested within a single bulge. Where you see a man waving to a friend, the sorcerer sees a man beckoning drug users forth to purchase his wares. Where you see nothing at all, he sees the deliberate absence of something, the most damning clue of all.

Officers have been known to describe this gift, with no apparent irony, as their "spidey sense." I want to be clear that I am not making that up. I have heard it said, numerous times, out loud, under oath, by a grown adult, to a judge, who nodded as it was said.

The genius of this Master Incantation is that it is utterly unimpeachable. The officer need not identify which training, taught by whom, drawn from what data, validated by what study that has ever once been conducted. He need only intone the phrase, and the court will nod gravely, as one nods at a wizard of unimaginable and unknowable power, and the search will be upheld.

Spell VII: Totalitus Bogus (The Totality of the Circumstances)

The student who has mastered the previous incantations may believe he has reached the pinnacle of the craft. He is mistaken. Those spells are but ingredients. The true sorcerer combines them in the ancient ritual known as the Totality of the Circumstances. This is perhaps the most misunderstood doctrine in all of constitutional wizardry. A novice defense attorney may foolishly attack each fact individually.

"Your Honor, mostly innocent people live in so-called high crime areas."

Correct.

"Nervousness is common during any police encounter."

Quite right.

"Turning one's body is simply how human anatomy works."

Obviously.

"The officer never articulated any objective threat to his safety."

Entirely fair.

"And 'based on my training and experience' isn't evidence at all."

An excellent point.

For while each ingredient is worthless on its own, the ancient art teaches that enough empty vessels, stacked just so, overflow into a cornucopia. Appellate courts call this the "whole picture." It is less like a picture than a child's collage: a macaroni noodle, a cotton ball, half a popsicle stick, and a leaf glued to construction paper. Individually meaningless. Together, a horse.

The Master Sorcerer therefore does not fear when each individual spell is exposed as nonsense. He welcomes it. For the weaker the ingredients, the more dazzling the trick when they combine. The ritual is complete. The Fourth Amendment evaporates in a puff of smoke. The search is upheld.

Westendorf & Khalaf, PLLC. Virginia Beach Criminal Defense. Free consult. · 757-961-3311 · WWW.WKDEFENSE.COM