Asymmetries, norm matching, and the pursuit of equity between the police and the public

• Author: Eang L. Ngov
• Position: Professor of Law, Barry University Dwayne O. Andreas School of Law
• Pages: 231-280

LEAD ARTICLE

ASYMMETRIES, NORM MATCHING, AND THE PURSUIT OF

EQUITY BETWEEN THE POLICE AND THE PUBLIC

Eang L. Ngov*

ABSTRACT

Concerns about police abuse and overcriminalization are on the forefront of

public conscientiousness. In spite of the Black Lives Matter movement and calls

for police reform, law enforcement officials enjoy a variety of criminal procedure

loopholes and double standards, which the United States Supreme Court has rati-

fied through its creation of the open fields, mistake of law, and third party doc-

trines, as well as its acceptance of deceptive police practices.

This Article analyzes the asymmetries between permissible civilian conduct

and permissible police conduct to make a broader, systemic critique of the dou-

ble standards and loopholes that pervade constitutional criminal procedure. It

further seeks to provide a starting place for reconciling an individual’s rights

under the Fourth, Fifth, and Sixth Amendments with permissive police practices.

As it now stands, police may openly trespass on fenced, private fields with

posted warning signs, lie or fabricate evidence during an investigation to extract

a confession, excuse a wrongful stop or arrest by claiming a mistake of law, and

obtain warrantless access to information shared with entrusted businesses,

though such information is ordinarily protected against public disclosure. By

allowing these practices, the Court, at the expense of privacy and other rights,

endorses acts for which members of the public would be criminally sanctioned.

The perpetuation of these double standards, loopholes, and asymmetries can

trigger serious unintended consequences. Cognitive dissonance can result when

individuals discover that their expectations of the law conflict with its actual

operation and when their expectations of privacy and other rights are

* Professor of Law, Barry University Dwayne O. Andreas School of Law. J.D., University of California at

Berkeley School of Law; B.A., University of Florida. © 2023, Eang L. Ngov.

I am indebted to Daniel P. O’Gorman, Christopher Slobogin, Michael Mannheimer, and the participants of the

SMU Dedman School of Law Deason Criminal Justice Reform Workshop, ACS Constitutional Law Scholars

Forum at Barry Law School, Southeastern Association of Law Schools Criminal Procedure Workshop, and

Loyola Chicago University School of Law Constitutional Law Colloquium for their insightful comments. I thank

Pamela Metzger and Kenitra Brown for the opportunity to present at the Criminal Justice Reform Workshop and

for coordinating the Workshop. I am grateful for excellent research assistance and editing provided by Kimberly

Adams, Christy Earls, Jade L. Grey, Andrew Grim, Darielena Lamastus, Anthony Mitchell, Kathleen C.

O’Gorman, and Ian Wise; help from Law Reference Librarians Diana Botluk, Jason Murray, and Louis Rosen;

administrative help from Katherine Sutcliffe-Lenart and Lucinda Machado; and support through the Barry Law

School summer research grant. Finally, I am indebted to the amazing members of the American Criminal Law

Review for their careful and thoughtful editing.

231

consequently upended. To remedy the cognitive dissonance, a person might

retreat into isolation. This retreat can negatively impact social capital, or the

benefit that accrues from networking and social interactions. Moreover, as indi-

viduals discover the double standards and loopholes afforded to police, they may

perceive the criminal justice system as unfair and lose trust in the laws, police,

and, ultimately, the government’s legitimacy—which could itself culminate in

disobedience of laws.

Therefore, this Article proposes an elegant, easily administrable rule: the

Court should cease to privilege these asymmetries over individual rights and

recalibrate doctrinal police policies to conform to societal norms and public

expectations. The courts, governmental bodies, and law enforcement entities

should eliminate these asymmetries to secure the public’s trust and confidence.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

I. INSTANCES OF CRIMINAL PROCEDURE ASYMMETRIES . . . . . . . . . . . . . . . 235

A. Trespass and Open Fields . . . . . . . . . . . . . . . . . . . . . . . . . . . 235

B. False Statements and Police Lies . . . . . . . . . . . . . . . . . . . . . . 243

C. Ignorance of the Law and Mistake of Law . . . . . . . . . . . . . . . 248

D. Privacy and the Third Party Doctrine . . . . . . . . . . . . . . . . . . 252

II. THE CONSEQUENCES OF LEGAL ASYMMETRIES . . . . . . . . . . . . . . . . . . . 254

A. Cognitive Dissonance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

B. Isolation and Loss in Social Capital. . . . . . . . . . . . . . . . . . . . 257

C. Expressive Harms: Perceptions of Unfairness, Loss of Buy-in,

and Rejection of Legal Norms . . . . . . . . . . . . . . . . . . . . . . . . 261

III. PROPOSAL: NORM MATCHING AND THE PURSUIT OF EQUITY BETWEEN

POLICE AND PRIVATE CITIZENS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

A. The Proposal: Norm Matching . . . . . . . . . . . . . . . . . . . . . . . 266

B. Cost-Benefit Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

1. Fairness enhances legitimacy . . . . . . . . . . . . . . . . . . . . . 270

2. Clarity provides guidance to all. . . . . . . . . . . . . . . . . . . . 271

3. Catching criminals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280

INTRODUCTION

The expression “do as I say, not as I do” might be appropriate for parenting, but

it has no place in police-public relationships. The United States Supreme Court,

however, has effectively endorsed this expression for the police by establishing the

open fields, third party, and mistake of law doctrines and allowing deceptive police

practices under constitutional law.

232 AMERICAN CRIMINAL LAW REVIEW [Vol. 60:231

This Article highlights and examines four asymmetries found in criminal proce-

dure, aiming to present a broader critique of the systemic loopholes that pervade

criminal procedure and create the perception that the police are above the law.

Part I identifies four asymmetries, consisting of double standards and loopholes:

the open fields doctrine, use of police deception, mistake of law doctrine, and third

party doctrine. First, when laypersons see fences, walls, or postings demarcating

private property, they must heed those signs lest they be prosecuted for trespassing

on another person’s property, including an open field.

1

Police officers, however,

may trespass with impunity on private fields.

2

Second, a private citizen may be prosecuted for lying to officers during an inves-

tigation.

3

Yet, officers may lie to the suspect—even to elicit a confession.

4

While

the Constitution protects persons from physical and psychological coercion exerted

by police, the Court has not interpreted it to protect against deceptive police prac-

tices that may be deployed during any stage of an investigation.

5

Third, U.S. constitutional law and criminal law ironically impose a higher stand-

ard on the public to know the law than on police officers to know the law.

6

A lay-

person may not use ignorance of the law to escape criminal liability or rely upon

his or her own interpretation of the law as a basis for establishing a mistake of law

defense.

7

But officers are allowed to excuse their ignorance of the law and may

even justify their errors by asserting a claim of reasonable mistake of law.

8

Lastly, laypersons expect their information to be kept private and confidential

when given to third parties for a legitimate business purpose.

9

Eang L. Ngov, More Than Friends: Recognizing Dichotomous Relationships in the Third Party Doctrine

(Feb. 13, 2023) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4357446.

But the third party

doctrine overrides any expectation of privacy by allowing officers to access the in-

formation entrusted to third parties, including businesses, without showing probable

cause or obtaining a warrant.

10

Disclosure of information may even be compelled

through a subpoena, over the third party’s protests.

11

Part II argues that these asymmetries have the potential to cause serious unin-

tended consequences. One concern lies with the cognitive dissonance that might

1. See, e.g., ALA. CODE §§ 13A-7-1, 13A-7-4 (2022); ARK. CODE ANN. § 5-39-203 (West 2022); LA. STAT.

ANN. § 14:63 (2021); CAL. PENAL CODE § 602 (West 2022); FLA. STAT. ANN. § 810.09 (West 2022); KY. REV.

STAT. ANN. §§ 511.070(1), 511.080, 511.090(4) (West 2022); MASS. GEN. LAWS ANN. ch. 266, § 120 (West

2022); ME. REV. STAT. ANN. tit. 17-A, § 402(1)(C) (2022); OHIO REV. CODE ANN. § 2911.21 (West 2022); TENN.

CODE ANN. § 39-14-405 (West 2022).

2. See Oliver v. United States, 466 U.S. 170 (1984); United States v. Dunn, 480 U.S. 294 (1987).

3. See, e.g., 18 U.S.C. § 1001.

4. See Frazier v. Cupp, 394 U.S. 731 (1969).

5. Id.

6. Eang L. Ngov, Police Ignorance and Mistake of Law Under the Fourth Amendment, 14 STAN. J. C.R. &

C.L. 165, 177–78 (2018).

7. See, e.g., People v. Marrero, 507 N.E.2d 1068 (N.Y. 1987).

8. See Heien v. North Carolina, 574 U.S. 54, 57 (2014).

9.

10. See United States v. Miller, 425 U.S. 435 (1976); Smith v. Maryland, 442 U.S. 735 (1979).

11. See, e.g., Miller, 425 U.S. at 437.

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