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]
A controversial police raid of the popular Capitol Hemp stores in Washington, D.C. has become more interesting with the release of the affidavit filed by an undercover officer seeking a judge’s approval to search the premises for evidence of drug paraphernalia distribution. Police allege that water pipes and other tobacco accessories sold at the stores were intended for illegal use, and their evidence includes the fact that Capitol Hemp sold Flex Your Rights DVDs!
Check out this section from the search warrant affidavit, available in full at DCist:
4. While your Affiant was looking at the smoking devices U/C [redacted] observed a DVD that was for sale entitled "10 Rules for Dealing with Police". The DVD gave the following listed topics that were covered as:
A. Deal with traffic stops, street stops and police at your door.
B. Know your rights and maintain your cool, and;
C. Avoid common police tricks and prevent humiliating searches.
On Friday NYPD Commissioner Raymond Kelly issued a directive to all precincts ordering them to stop arresting New Yorkers for small quantities of marijuana if the marijuana is not in plain view.
This is a major reversal for a department that took great pride in its aggressive policing policy. Conducting 600,000 stop-and-frisks, the NYPD made more than 50,000 marijuana possession arrests in 2010. Although marijuana is decriminalized in New York, making possession only a ticketable offense, police have exploited a loophole in the law, routinely tricking and intimidating citizens into "voluntarily" revealing their contraband. This so-called "brandishing" of marijuana is a misdemeanor crime.
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.
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.
I recently got pulled over by the Texas Highway Patrol for an expired registration.
The cops double-teamed me — one at the passenger-side window and one at the driver’s side window, both talking to me at the same time, trying to confuse me. Each took turns sticking their heads as far as they could inside the car, looking around, and inhaling deeply.
After about five minutes of continuous sniffing, I finally asked one of the officers if everything was okay. "Just making sure you don’t have any weapons. It’s a safety thing. You mind if we take a look around?"
Of course, I knew the response. "I know you’re just doing your job, but I don’t consent to any searches."
About ten minutes into the encounter, one of the cops excitedly pointed at my cup holder. "Sir! What’s that white residue on your cup holder? I need to be sure that’s not something dangerous!"
I explained that the white residue was dust — dead skins cells and detritus that you normally see in a dirty-ass car like mine.
Anyway, I kept cool, asserted my rights in a calm manner, didn’t consent, and drove away without being searched. Not that I had anything to hide, but it felt good to assert my rights. Thanks for helping me do that.
San Francisco Examinerreports 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.
I recently moved to Los Angeles with my girlfriend, and my parents visited this weekend. Over dinner we discussed the California Supreme Court ruling which held that police officers don’t need a warrant to lawfully search mobile phones of arrestees.
All four of us own a smartphone, but I was the only one who encrypted password protected mine. So I obnoxiously brandished my Android device to demonstrate how easy it is to swipe a simple pattern to turn the phone on.
My girlfriend, a UCLA MBA candidate, scoffed that it was inefficient and not worth her time. But I countered that the split-second motion quickly becomes effortless. On the other end, my parents thought they had nothing to hide. (Have I taught these people nothing!?)
For the more cynical among us, Ryan Radia at the Ars Technica blog presents a thorough analysis of the relevant court cases impacting your smartphone privacy rights. He also lays out simple strategies that can protect your mobile device from police searches, even if you’re under arrest.
His tips should be common sense to Flex Your Rights fans.