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.

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.

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.

Just got word of this ruling today. We now need to work harder than ever to inform all Americans about why they must be prepared to invoke their right to remain silent. More analysis to come...

Flex Your Rights Hero Savana Redding

Today, the Supreme Court ruled 8-1 in Safford Unified School District #1 et al v. Redding that school officials violated the 4th Amendment when they strip searched a 13-year-old girl. Savana Redding was subjected to a strip search that included looking inside her underwear after the school principal received a tip that she might be in possession of prescription ibuprofen. None was found.

By a strong majority, the Court declared the search unreasonable under the 4th Amendment, finding that a full strip search was unjustified based on the nature of the drugs and in question and the absence of specific evidence that contraband would be found in her underwear.

For many years, the Supreme Court has permitted police to search the passenger compartment of a vehicle any time an occupant of the car is arrested. These so-called "searches incident to arrest" were authorized in New York v. Belton (1981) based in large part on concerns about officer safety, namely that the suspect might dive for a weapon hidden in the car. As a result, police have grown accustomed to searching vehicles for "safety reasons" even after the suspect has been taken into custody. This doesn't protect officers, but it certainly encourages police to make more arrests so they can do more searches.

Terry v. Ohio
392 U.S. 1, 88 S.Ct. 1968,
20 L.Ed.2d 889 (1968)

A police officer witnessed three men pacing in front of a jewelry store and suspected that a robbery was being planned. He approached the men and identified himself, then performed frisks of defendants Richard Chilton and John Terry and discovered illegal concealed weapons. Defendants were convicted and appealed, claiming that the frisk violated their Fourth Amendment right against unlawful searches and seizures.

Whren v. U.S.
1996 WL 305735 (1996)

Plainclothes officers in an unmarked car spotted a suspicious SUV with young black occupants and temporary tags. The vehicle remained at a stop sign for an unusually long time, during which the driver appeared to be looking into the passenger's lap. When the officers made a U-turn in order to get a second look at the vehicle, it turned suddenly without signaling and reached an "unreasonable" speed. The officers caught up with the vehicle at a traffic light, and upon approaching the driver's side door spotted two large bags of crack in plain view. The defendants were convicted and appealed claiming that the officers' decision to stop them was motivated by an unsupported belief that they were involved in drug dealing, rather than by a desire to warn them about traffic laws.

Schneckloth v. Bustamonte
412 U.S. 218, 93 S.Ct. 2041,
36 L.Ed.2d 854 (1973)

Officer James Rand stopped a car with six occupants and received consent from the driver to search the vehicle. It was determined that the officer did not pressure the driver into consenting. In the back seat he found three checks which had been stolen from a car wash. Defendant Robert Bustamonte challenged his arrest, arguing that while he had consented voluntarily, he had not been informed of his right not to consent to the search.

In Schneckloth v. Bustamonte, the Supreme Court ruled that consent is valid as long as it is voluntarily given. The ruling held that police may not use threats or coercion to obtain consent, but that they need not inform suspects of their right not to consent to a search. In reaching this decision, the Court rejected the stricter "waiver test," which holds that suspects must be fully informed of their Fourth Amendment right against unreasonable searches and seizures before they can give valid consent.

Florida v. Bostick
501 U.S. 429, 111 S. Ct. 2382,
115 L.Ed.2d 389 (1991)

Defendant Terrance Bostick boarded a bus from Miami to Atlanta. At a stopover in Ft. Lauderdale, the bus was boarded by two uniformed narcotics officers who were performing a routine inspection of the bus. Without reasonable suspicion, the officers approached Bostick in his seat and requested to see his ticket and identification. Finding nothing unusual, the officers proceeded to request consent to search his luggage. Bostick reportedly consented, at which point the officers performed a search and discovered cocaine. Bostick was subsequently convicted. He appealed claiming that due to his apparent inability to leave the bus, the encounter constituted an unlawful seizure. Consequently, he argued that the evidence obtained from his unlawful seizure must be suppressed.