Mapp v. Ohio: The Exclusionary Rule

Mapp v. Ohio 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) Police officers forcibly entered Dollree Mapp’s home in search of a bombing suspect. In the course of the search, officers failed to produce a valid search warrant and denied Mapp contact with her attorney, who was present at the scene. While the […]

Illinois v. Caballes: Dog Sniffs & You

In Illinois v. Caballes, the Supreme Court ruled that police do not need reasonable suspicion to use drug dogs to sniff a vehicle during a legitimate traffic stop. This decision stems from the case of Roy Caballes, who was pulled over for speeding and subsequently arrested for marijuana trafficking after a drug dog was brought […]

What If Police Smell Weed?

One of the most common questions we get at Flex Your Rights is how to handle a situation in which police smell weed (or claim to smell weed). This can happen whether or not you actually have marijuana and police actually smell it, so it’s a situation everyone should be prepared for. My latest YouTube […]

7 Rules for Recording Police

This article by Steve Silverman originally appeared on April 5, 2012, in It’s been updated to include new information regarding recent rulings in favor of citizens’ right to record. Last week the City of Boston agreed to pay Simon Glik $170,000 in damages and legal fees to settle a civil rights lawsuit stemming from […]

New York Police Stop Every Young Black Man in the City…For Safety

The latest data on stop and frisks in New York City is nothing short of horrifying. Kristen Gwynne at AlterNet reports.

For the NYPD’s stats to add up, they’d have to have stopped every young, black man living in the city once–and then some. Both marijuana arrests and street stops are soaring under Bloomberg’s administration, but the data shows that rise in aggressive policing is only apparent in certain communities. Demonstrators stressed that pot arrests and stop-and-frisk have come to epitomize a city-wide problem requiring urgent redress.  

In 2011 alone, more than 50,000 New Yorkers — 87 percent of whom are black or Latino — were arrested for petty marijuana possession. Though often considered a trivial arrest, a pot conviction can have serious consequences. 

No kidding. But Mayor Bloomberg defends the policy, and its horrible consequences, by claiming it’s all about getting guns off the street:

The number of guns that we’ve been finding has continued to go down, which says the program at this scale is doing a great job….The whole idea here, John, is not to catch people with guns; it’s to prevent people from carrying guns. It’s like a stop we have for driving while intoxicated. It would be great if everybody said, "Oh my goodness, I might get stopped so I’m not gonna drink and drive." That’s great. That’s what we want. That would be wonderful. And the fact that we’re getting fewer guns says the program is working. And the program will really have succeeded when we don’t get any guns.

Yet, as Jacob Sullum points out, searching people without evidence for the sole purpose of deterring crime is completely and utterly unconstitutional. Think about the actual words Bloomberg uses here: "The whole idea here…is not to catch people with guns; it’s to prevent people from carrying guns." If you’re not actually even trying to catch people with guns, what on earth is the legal justification for stopping these guys in the first place? It’s illegal to stop someone on suspicion of carrying a firearm unless you have a reason to believe that they’re carrying a firearm, and just to clear up any confusion, being black doesn’t count as evidence that somebody’s got a gun.

Moreover, if this is really all about protecting the public from gun violence, I’d like to know why it’s necessary to arrest people who were unarmed but happened to have a little bit of marijuana in their pocket when police stopped them to look for guns. Concealed possession of small amounts of marijuana isn’t supposed to be a crime in New York anyway, but particularly in the context of a public safety policy solely aimed at taking weapons off the streets, why are marijuana users being arrested at all? It looks horrible in the press and badly exacerbates the appearance (heck, let’s just call it the reality) of racial bias underlying this whole hideous process. 

The bottom line is that if this program isn’t all about stopping, searching, and arresting young black men for marijuana on a massive scale, then the procedures should be changed to produce some outcome other than a bunch of blatantly racist drug arrests. If anyone in NYPD needs advice on how not to racially profile people and arrest them for petty offenses, I have a few ideas, most of which revolve around the following theme: stop doing it.


What Happens AFTER You Refuse a Police Search?

Flex Your Rights has been working for many years now to educate everyone we can about the importance of refusing police searches and otherwise knowing and asserting your constitutional rights when confronted by police. Unfortunately, even if you handle a police encounter perfectly, things can still get pretty ugly. This video discusses how to handle some of the challenges you can run into after asserting your rights:


Steve Silverman & Scott Morgan on Freedom Watch with Judge Napolitano

Scott Morgan and I were honored to discuss 10 Rules for Dealing with Police with Judge Andrew Napolitano. (Air Date: Nov 29, 2010.) Here’s to hoping the good judge gets a new show soon. I watched it; I loved it; it’s right on the law, and everybody should see it. — Judge Napolitano on 10 Rules for Dealing with Police

Will Strip-Searches Stop Terrorism and Save America?

I’m not sure I remember the last time I read anything as utterly cringe-inducing as this New York Times report on the Supreme court’s new decision allowing strip searches of absolutely anyone who gets arrested and taken to jail for any reason. There are at least a half-dozen different passages in this thing that make me wanna tear clumps of hair out of my head.

Bear with me if you dare to behold the perverted madness of the most esteemed judges in the nation.

“Every detainee who will be admitted to the general population may be required to undergo a close visual inspection while undressed,” Justice Kennedy wrote, adding that about 13 million people are admitted each year to the nation’s jails.

This right here is where the problem begins: the jailing of a jaw-dropping 13 million people every year, all of whom have to be stripped naked for their own safety, of course. 

A nun was strip-searched, he wrote, after an arrest for trespassing during an antiwar demonstration.

Awesome. Yeah, nothing promotes public safety like strip-searching a pacifist nun.  

Justice Kennedy responded that “people detained for minor offenses can turn out to be the most devious and dangerous criminals."

But not usually, though. More often they turn out to be…minor offenders, guilty only of whatever minor thing they were arrested for, if they even did that. And what the hell does strip-searching have to do with it anyway? Since when is the difference between a jaywalker and a serial killer determined by looking in somebody’s butt?

He noted that Timothy McVeigh, later put to death for his role in the 1995 Oklahoma City bombing, was first arrested for driving without a license plate.

But they didn’t find fifty pounds of fertilizer in his underpants, did they? Seriously, what on earth does Timothy frickin‘ McVeigh have to do with this? 

“One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93,” Justice Kennedy added. 

Again, what are you talking about? Did he have the 9/11 attacks hidden in his ass? This is all just a bunch of insulting irrelevant nonsense that has nothing whatsoever to do with the question of whether we should strip search people for frivolous shit like breaking traffic laws. 

Justice Breyer wrote that there was very little empirical support for the idea that strip-searches detect contraband that would not have been found had jail officials used less intrusive means, particularly if strip-searches were allowed when officials had a reasonable suspicion that they would find something.

A valiant effort from Breyer, but it is apparently a waste of time to demand evidence of an actual public safety purpose to be served by searching the junk of 13 million people every year, or to suggest that one needs to have "reasonable suspicion" of any particular threat before poking around down there. Keep in mind that the only thing all these people have in common is that a cop somewhere decided to arrest them for something. 

In a concurrence, Chief Justice Roberts, quoting from an earlier decision, said that exceptions to Monday’s ruling were still possible “to ensure that we ‘not embarrass the future.’ ”

I’ve never heard the phrase "embarrass the future" before, but I can’t think of a better time and place to introduce such a concept. It’s as if somewhere deep in the subconscious mind of the Chief Justice, a little voice is screaming that this is all completely sick, embarrassing, and insane.

Update: I added a couple words to the first paragraph to make it clear that this applies specifically to people who are taken to jail. I should have been more clear about that. It’s not like they’re gonna strip search you on the side of the road for any minor offense. The idea is to prevent people from smuggling things into jails, which is understandable for violent crimes, but not minor infractions. A better way to address these kinds of safety concerns would be to stop arresting so many people for so many petty reasons.