Attorneys doubt feasibility of preventive searches: “This gives police a license to do what they want”

POSTED: 08/12/15 4:52 PM

St. Maarten / By Hilbert Haar– The initiative by Justice Minister Dennis Richardson to introduce preventive body searches in the fight against criminality has met with doubts from the legal community. Attorneys question the measure’s feasibility and its effect.

Almost forty years ago, the so-called “hollende kleurling arrest” was the standard that kept preventive searches at bay. This is a ruling from the court in Amsterdam dating back to 1977 about two police officers who arrested a colored man they saw running towards them from a place called Caribbean Nights – at the time a hotbed for drug dealing in the capital.

The ruling banned police officers from searching citizens if they did not have a reasonable suspicion for wrongdoing against them. Preventive searches would obviously stop citizens at random for a search of their person and of their possessions.

Since the “hollende kleurling” arrest things have somewhat changed in the legal landscape. The Supreme Court now considers a preventive search that lacks reasonable suspicion a procedural oversight. It will no longer exclude evidence, but consider this fact in sentencing.

Criminal defense attorney Geert Hatzmann doubts whether preventive searches will work. “I doubt that they are going to search white people,” he told this newspaper yesterday. “So then they are only going to check dark people. There has to be a reasonable suspicion of guilt. In that sense the law must probably be adjusted and such an adjustment could violate European law.”

Hatzmann’s confrere Cor Merx says that the justice ministry has to take fitting measures. “Begin by controlling everybody who is driving a scooter without a helmet, but leave the pedestrians in Front Street alone.”

In the “hollende kleurling”-case, two officers were on foot patrol in the center of Amsterdam in October 1976.

The defendant in the case readily admitted to the court that he’s had 840 milligram of diacetylmorphine, aka heroin, in his possession on the night in question. He’d bought it, indeed at Caribbean Nights in the Warnoes Street in the heart of the city.

Because the defendant was in a hurry after his purchase, he ran in the direction of the Prins Hendrik kade, where someone was waiting for him.

He never got there because two police officers stopped him and asked him to show an ID. Because the defendant had the Dutch nationality, he refused. The police officers then arrested him. During the struggle, a piece of aluminum foil fell from his pocket. This turned out to contain the heroin.

The court ruled that there is no evidence that the officers, when they stopped the defendant and wanted to search him, had caught the man red-handed with heroin in his possession, nor that they could have had a suspicion that this was so.

The only grounds the officers had for their suspicions was that the man came running from the direction of Caribbean Nights, a place they knew as a meeting point for drug dealers. “That does not produce a reasonable suspicion of guilt,” the court ruled.

The court therefore acquitted the defendant.

Hatzmann says that since this verdict, the Supreme Court has ruled that searching a citizens without a reasonable suspicion of doubt is a procedural oversight. “The court will no longer exclude evidence obtained this way, but it will take the violation into account for the sentence. Someone may get 10 instead of 12 months. This way the Supreme Court has given the police a license to do what they want, because preventive searches won’t break cases anymore.”

The more pregnant question, Hatzmann says, is this one: “Do we want this? We are going towards a police state this way.”

Merx expresses a similar sentiment. “Years ago there was a defendant who wanted to hit the judge in court with a hammer. The reaction was to scan everyone who wanted to enter the courthouse. But in my mind, the courthouse is a public place and this way, the public becomes the victim.”

Merx says that he understands the current sentiment towards stricter controls. “You have to do this in moderation. Don’t begin with massive controls on Front Street. That is not the way to catch criminals.”

Hatzmann sees yet another obstacle: “I wonder if this is doable with the available manpower. I think it is not possible to execute this. I’d say: give the police bulletproof vests and have the entrepreneurs on Front Street invest in up to date camera surveillance with a link to the command center of the police. They sell watches for $40,000 and they employ people at $4 an hour, so that should not be a problem.”

Hatzmann furthermore suggests an advanced system for instant blockades of escape routes in town after a report about a robbery.

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