How to Flex Your Rights During Police Encounters

Today's ruling from the Supreme Court reminds us that the 4th Amendment is at least a little less dead than some have suggested:

WASHINGTON — The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

A set of overlapping opinions in the case collectively suggested that a majority of the justices are prepared to apply broad privacy principles to bring the Fourth Amendment’s ban on unreasonable searches into the digital age, when law enforcement officials can gather extensive information without ever entering an individual’s home or vehicle. [NYT]

It's an important win, not so much because of what the ruling itself means, but because a loss in this case would have constituted another rather harsh blow to an already fragile 4th Amendment.

Really, it says a lot about our legal system's regard for civil liberties that it was even necessary for the highest court in the country to spend any time at all considering whether or not it constitutes a "search" when police install a tracking device on someone's vehicle and monitor their every movement for a month straight. That's like asking if the condition of being engulfed in flames constitutes a "fire."

Unfortunately, some larger questions surrounding 4th Amendment rights in an age of increasingly high-tech surveillance systems remain unanswered today. A majority of the justices agreed that police performed an unconstitutional search by placing a GPS device directly on the suspect's vehicle, and they decided the case on those grounds alone. If police had used a different technology – one that didn't require sneakily installing something on someone's private property – it's possible that the Court would have approved. We don't know, and I'm more than a little bit afraid to find out.

Steve Silverman and I will be joining the popular political site FireDogLake this evening for a webchat about our latest film 10 Rules for Dealing with Police. Please join us from 8:00-9:30ET for what I'm sure will be a lively discussion. Just click into FireDogLake.com at 8:00 and register here if you'd like to comment or ask questions.

This week's Supreme Court decision in Kentucky v. King has civil-libertarians and marijuana policy reformers in an uproar, and rightly so, but it's not exactly the death of the 4th Amendment. Here's a look at how this case could impact police practices and constitutional rights.

It all started when police chased a drug suspect into a building and lost him. They smelled marijuana smoke coming from an apartment and decided to check it out, so they announced themselves and knocked loudly on the door. They heard movement inside, which the officers feared could indicate destruction of evidence, so they kicked in the door and entered the apartment. Hollis King was arrested for drugs and challenged the police entry as a violation of his 4th Amendment right against unreasonable searches.

In an 8-1 decision written by Justice Alito, the Court determined that an emergency search was justified to prevent destruction of evidence, even though police created the risk of such destruction by yelling "Police!" and banging on the door. The determining factor, in the Court's view, was that police had not violated the 4th Amendment simply by knocking on the door. Since the subsequent need to prevent destruction of evidence was the result of legal conduct by the officers, the events that followed do not constitute a violation of the suspect's constitutional rights.

San Francisco Examiner reports on the latest in a series of controversies surrounding constitutional violations by SFPD officers:

Private attorney Robert Amparan said at a news conference Wednesday at Public Defender Jeff Adachi’s office that a judge had just thrown out his client’s felony marijuana possession for sale case because video evidence contradicted the officers’ testimony in court and statements on the police report.

Amparan said 23-year-old McLaren Wenzell did not consent to letting the officers inside his apartment at 33rd Avenue and Geary Boulevard on March 1. He said the officers did not immediately identify themselves as police and did not have a constitutional basis to search the apartment.

As we work to educate the public about how to properly exercise constitutional rights during police encounters, a reaction we hear frequently is, "What's the point? They're just going to search me anyway." Well, as you can see in the story above, police can get busted for bad behavior, and when they do, the evidence is often declared inadmissible. Think about this: if the suspect had instead given consent for the search, there wouldn't have been any question about the legality of the police entry, and he would have been convicted.  The only reason things worked out for him is because he refused the search and relied on his constitutional rights for protection.

But the critical point here goes beyond what happened to this particular suspect in this particular case. Keep in mind that the legal significance of refusing a police search applies whether or not you've broken the law, and whether or not police break the law. If officers plant evidence, damage your property, or otherwise disrespect your home, it's almost impossible to challenge their actions if you gave them permission to come inside. That's how the law works, and the fact that police sometimes violate it gives you more reason to know and assert your rights, not less.

Flex founder Steve Silverman discusses our work with Reason's Tim Cavanaugh:

Recent Supreme Court decisions regarding search and seizure haven't exactly signaled an unyielding reverence for our 4th Amendment rights, so I shudder to think how the Court will rule on this:

Kentucky police were following a man who had just sold drugs to an undercover informant. They entered an apartment breezeway, heard a door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King's apartment door and identified themselves as police. The officers said they heard a noise and feared evidence was being destroyed. They kicked down the door and found King, two friends, some drugs and cash. [Washington Post]

Home searches generally require a warrant, even when probable cause exists (the smell of marijuana), but officers claimed their fear that evidence would be destroyed constituted an "exigent circumstances" exception to the warrant requirement. Ironically, however, the presence of police became known to the suspects only because the officers knocked and announced themselves. If any effort was made to dispose of evidence, it was obviously triggered by the police, who could have waited for a warrant rather than initiating contact right then and there.

If the Supreme Court upholds this search, police will be encouraged to creatively interpret any noises heard within homes they'd like to search, and it's hard to imagine what sorts of sounds couldn’t potentially be said to indicate possible destruction of evidence. Police who hear "sudden movements" after pounding on someone's door can claim to be concerned about destruction of evidence, but who wouldn't make a sudden movement if cops were shouting and banging on the door? Maybe I'm just putting on some pants. Maybe I'm hastily locking my dog in the bathroom so they won't shoot its brains out. People are going to react when disturbed in their homes and it's absurd to strip our 4th Amendment rights based on one of many possible explanations for the movements people make when you startle them.

Keep in mind, however, that this case involved a probable cause situation in which police did smell marijuana. Even the worst possible ruling still wouldn't give police the authority to randomly knock on doors with no evidence and perform emergency searches based on suspicious reactions from the people inside. But if the Court continues chipping away at the 4th Amendment at its current pace, I can't blame anyone for worrying that we're headed in that direction. Fortunately, some of the justices expressed serious concerns about giving police more leeway to perform emergency searches. This one could go either way and we'll be sure to keep you posted.

More than two years after plans were first announced, the Washington Metropolitan Area Transit Authority has finally implemented a program of random bag inspections. At unannounced checkpoints, riders will be selected at random and asked to submit to chemical analysis of any packages they are carrying. Any bags testing positive for explosive materials will be searched. Riders who are chosen for inspection may decline, but will not be permitted to enter the station with their bags.

This is essentially a modified version of a proposed program that stalled in October '08 due to widespread outrage over the obvious civil liberties violations involved in carrying out suspicionless searches on public transit. Flex Your Rights played a leading role in opposing the program by organizing public protests and distributing informational flyers about how to refuse Metro searches. Our efforts generated significant media coverage, and even provoked frivolous legal threats from Metro itself, which the ACLU of the National Capital Area successfully rebutted.

As the months passed by without any searches, we came to believe that our campaign had been a success and that public opposition had, for once, succeeded in shutting down a shameful assault on our 4th Amendment rights. Sadly, it's now clear that the program's proponents were merely regrouping and revising their plans after meeting with an unexpected level of opposition.

That's what one student said after attending a screening of 10 Rules for Dealing With Police at West Virginia University. After another showing at Quinipac University in Connecticut, a student commented that, "I didn't think I had the right to refuse." We hear that reaction all the time, and that's why know-your-rights events like these are so important.

It's been less than a year since we released 10 Rules for Dealing With Police, so this Fall semester has been our first opportunity to really begin debuting the film on college campuses. Groups like Students for Sensible Drug Policy and Students for Liberty have done an amazing job putting together events across the country, and we've recently partnered with NAACP, which should create lots of great opportunities as well.

Of course, you don't have to be a student, or a lawyer, or an experienced activist to help educate your friends and family about how to deal with police. We've put together a helpful guide for anyone who wants to organize a know-your-rights event in their community. It's easier than you think, and just one event can empower dozens, even hundreds, of people to protect their rights during police encounters.

That's how Crawford County State’s Attorney Tom Wiseman justifies his decision to bring five felony charges against an Illinois man who recorded an encounter with police officers. As the debate over the right to record police heats up, I've often found myself wondering how on earth anyone in law-enforcement could justify arresting citizens simply for recording video of a public encounter.

Alas, this piece by Radley Balko answers my question and it isn’t pretty. Imagine my surprise to find the same folks who coined the phrase, "If you've got nothing to hide, then what are you worried about?" suddenly claiming a right to privacy after videos of police misconduct began springing up all over the web.

Ta-Nehisi Coates at The Atlantic comments on a recent incident in which a 57-year-old school-teacher was tased after calling police to report a prowler.

New York Times reports on a section of Brooklyn that's become a focal point for NYPD's out-of-control stop and frisk tactics. "These encounters amounted to nearly one stop a year for every one of the 14,000 residents of these blocks." Yikes.

The controversy over last year's arrest of Harvard Professor Henry Louis Gates is back in the press following the release of a new police report investigating the incident. Interestingly, the findings don't really address the issue of race, which is surprising given the role that racial tension played in the encounter and subsequent debate.

NPR had a great piece last week on the right of citizens to videotape police, featuring Radley and Carlos Miller. USA Today also has an excellent editorial defending the pratice of recording officers in public.