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.

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.

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.

Today’s Supreme Court ruling in Herring v. U.S. provides yet another opportunity for us to put a bad ruling in perspective. Like most recent 4th Amendment cases decided by the Court, Herring is an unfortunate finding, but it’s not going to change our advice on handling police encounters.

Bennie Dean Herring was known to local police, who spotted him at the impound lot where he was retrieving an item from his impounded truck. An officer confirmed that Herring had a warrant in a neighboring county and arrested him, in the process discovering methamphetamine and a gun. Moments later, the officer learned that the warrant was erroneous, thus the arrest and subsequent search were invalid.

The Supreme Court found that because officers legitimately believed a warrant existed for Herring’s arrest, their actions were justified and not subject to the exclusionary rule, which prohibits the use of illegally obtained evidence. This is called the "good faith" doctrine, wherein police actions are upheld if officers believed they were acting legally (even if they were not).

The "good faith" doctrine is nothing new, so the Court’s decision isn’t particularly shocking. The Court argues that the exclusionary rule is intended to deter police misconduct and shouldn’t be applied here because the officers didn’t willfully do anything wrong. The dissent argues, and I agree, that the exclusionary rule is a perfectly appropriate means of deterring police agencies from keeping bad records that cause illegal arrests. If there’s no penalty for using bad information, then police have no incentive to keep their books in order. Worse yet, I could envision situations in which police manufacture "good faith" circumstances by preemptively withholding relevant facts from the arresting officers.

The exclusionary rule is vital to the interests of justice and we regret any ruling that reduces the citizen’s protection against illegally obtained evidence. That said, we hope the public will recognize that today’s decision is based on a specific set of circumstances and does not mean that police can now perform illegal arrests at will. The 4th Amendment continues to protect citizens against illegal searches, particularly in common scenarios such as searches that follow a refusal of consent. There’s no question that the Supreme Court is disturbingly reluctant to uphold 4th Amendment rights, but our right against unreasonable searches and seizures is still relevant in the vast majority of common police encounters. Knowing these rights remains your best and only defense when confronted by law enforcement.

Being on the blunt edge of technology, I've just subscribed to my first podcast. Created by rockstar attorney, David Clark (AKA: Smoove D.), the show celebrates the myriad reasons why the 4th Amendment, um, rocks. Enjoy!

In response to the random search program announced yesterday by the Metro Transit Police, we've prepared this handy guide to protecting your rights when using public transportation in the Washington, D.C. area. We'll also be organizing some volunteers to help distribute flyers about the program at various Metro stations. Please contact us if you're interested in helping out.

Alas, the looming specter of subway searches has finally descended on our nation's capital. We've long assumed it was just a matter of time, but as time came and went, it seemed the tragic fad of frivolous subway searches would elude us. Unfortunately, we were wrong.

People who’ve had bad experiences with police have sometimes responded negatively to our materials, arguing that police will simply take things to the next level if you refuse a search. Here’s an interesting example from Florida, in which police were forced to drop the charges after wrongfully arresting a suspect who refused a search:

Constitution Day is an opportunity to celebrate the fundamental rights and freedoms we enjoy as Americans. But for many, it also provides an occasion to take note of all the ways in which the promise of liberty handed down by our forefathers has been broken time and again as our criminal justice system grows sufficiently enormous to terrify even the best-behaved among us.