The Problem with Stealth

Article by Peter H. Lederman, Esq.

Published in the New Jersey Law Journal

Police use of high-tech devices raises profound questions about the ability of individuals in a free society to flourish, no less survive, when under constant observation by the state.

High tech Stealth vehicles seem to be the rage for police departments around the State. Everything from blacked out Dodge Chargers to AWD’s with low profile overhead lights can be seen patrolling highways and towns, as a result of new technology and the end of Crown Victoria production. They also are the product of police departments wanting to go stealth, to replace “cherry tops” and obvious department markings with what are in reality covert cruisers.

This trend reflects a desire to maximize the ability of law enforcement to watch people who don’t know they are being watched, at the same tie maximizing officer “productivity” in issuing complaints. Undercover police work obviously serves a legitimate purpose in certain types of police work, such as drug investigations, infiltrating terrorist groups and organized crime, requiring targeted investigations by their very nature. This is not the case in ordinary police patrol work, where the object is to watch everybody.

Stealth cars not only look unlike police car, they are crammed with equipment increasing the ability to observe drivers. Police cars have been equipped with Mobil Data Terminals for some time. These are essentially keyboards which provide instant information about a driver or car owner by providing direct access into the New Jersey Motor Vehicle Commission computer. Police officers can then, punch in a registration and get immediate information about the status of a car and the car’s owner. In one recent opinion, the Appellate Division denied a constitutional challenge to a motor vehicle stop based upon incorrect information as to a license suspension obtained through MDT use.

Many departments also use Automatic License Plate Readers which electronically scan plates eliminating the need to manually input registration information. This allows officers to do sweeps of parking lots or passing vehicles to identify the presence of people of interest.

Then there are RFID tags, sometimes referred to as spy chips, which can be used to identify an individual’s location when they pass through a sensor. EZ Pass is an example of this technology which can identify a driver’s location when passing through a toll. Some of these devices can transfer information even without passing through a toll plaza.

Through the miracle of other digital devices, officers can observe. The proliferation of publicly placed surveillance cameras allow police to observe people in the course of daily life.

All of these devices raise profound questions as to the ability of individuals in a free society to flourish, no less survive, when under constant observation by the State. This brings us back to the question of stealth cars. Is it good public policy for police to watch every day motorists without detection?

If deterrence is a serious goal of police work, the answer is obviously no. You cannot be deterred by what you can’t see. The same principle explains why police departments locate patrol vehicles at strategic locations. Drivers determine the presence of police and slow down to avoid apprehension.

Police at one time were visible members of the community. Their presence was an integral part of their job. They were about preventing crime, not just arresting violators. The same idea is reflected in Neighborhood or Community Oriented policing. There the mere presence of an officer is expected to discourage crime and provides confidence in the law abiding public.

Then there is the larger question of who polices the police? Just as with motorists, police will act within their limited authority when they know that inappropriate action will be observed and recorded by other citizens. Behind the cloaked veil of blacked out windows and cars without markings, there will be lessened accountability for the inappropriate or even illegal actions of an officer. A rogue cop in a stealth car is a serious problem.

Furthermore, these cars are the same car models driven by every day drivers. The same Dodge Charger, Ford Mustang or AVC truck is available to the public. The use of “blacked out” or tinted windows on stealth vehicles prevent drivers from determining whether the stealth car is operated by a police officer. Overhead lights and obvious police markings would suggest official police action. A driver “lit up” by an officer in a stealth car though might not have a way of knowing whether a stop is legitimate or the beginning of a robbery on the road. The bump and rob is made easy with use of police cars that look like any other car.

The final question must be what is gained by covert cruisers? The war to maintain speed limits was lost decades ago. Stop signs might as well as be replaced with “slow” signs. Forget cars keeping to the right on the highway. Stealth cars will make absolutely no difference in enforcing these laws. What they will do however, is increase officer productivity in issuing motor vehicle summonses, which in turn will increase revenue for towns. Old story, new chapter.

In the end we struggle with the concept of “law and order” in what we cherish as a free society. In balancing legitimate interests in this case, free society concerns should trump police productivity. Stealth car use should be limited to special investigations. They should be removed from ordinary patrol.

Reprinted with permission from the April 2015, issue of the New Jersey Law Journal. © 2015 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.
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