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Virginia v. Moore: Just Another Dumb Ruling, Not a Full-blown 4th Amendment Crisis

Yesterday's Supreme Court decision in Virginia v. Moore upheld the use of evidence seized during arrests that are illegal under state law. So now the whole "4th Amendment is Dead" choir is harmonizing again, this time about how police can now illegally arrest and search anyone anytime. But it ain't like that, not yet. My analysis is available here.

I hate a bad search and seizure ruling as much as anyone, but I'm also the associate director of Flex Your Rights, where we teach people how to exercise their rights during police encounters. That mission is challenging enough without well-meaning Bill of Rights enthusiasts issuing hyperbolic eulogies for the 4th Amendment every 3-6 months.

We face grave threats to our civil liberties, but ranking high among them is the fact that most of us don't have a clue what these rights are to begin with. Exaggerating the practical impact of bad rulings and legislation may feel like a strategy to get the public's attention, but it's not. That language merely serves to convince people that the battle is already lost and not worth fighting. It also exacerbates the widespread and tragic tendency of the majority of citizens to waive their constitutional rights whenever police ask them to.

That's why we defend constitutional rights by teaching people to assert them, instead of running around pronouncing to our friends and neighbors that they have no rights.
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A Great 4th Amendment Ruling in Alaska

This is one of the smartest 4th Amendment decisions I've seen in a while:
The Alaska Court of Appeals on Friday put law enforcement agencies on notice that it would not tolerate "implicitly coercive" search requests during traffic stops. The warning came in the form of a ruling on the case of Susan S. Brown, a driver pulled over on November 24, 2004 allegedly because of the light illuminating her car's rear license plate was dirty.

On that night, Alaska State Trooper Maurizio Salinas never explained to Brown the reason for the stop, nor that he had no intention of issuing a ticket. Instead, Salinas convinced Brown to allow him to search her car and her body -- even though Brown had no warrants and showed no signs of illegal conduct. Salinas testified that his policy was to conduct as many random searches as possible during traffic stops. In this case, Salinas discovered a crack pipe hidden in Brown's coat. Speaking for the unanimous court, Judge David Mannheimer found that such search requests not based upon any reasonable suspicion of criminal conduct abused the rights of motorists.


"Motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officers request for a search," Mannheimer wrote. "Because of the psychological pressures inherent in the stop, and often because of the motorists' ignorance of their rights, large numbers of motorists guilty and innocent alike accede to these requests." [thenewspaper.com]

We'll have to wait and see whether Alaska's Supreme Court picks up the case, but if allowed to stand, this decision should significantly undermine the type of "fishing expedition" drug war policing that forces citizens to prove their innocence by the roadside.

This ruling reaches the right conclusion for the right reasons, and provides a helpful example of the 4th Amendment's potency at the state level. When you are stopped by police in your neighborhood, it is not George Bush or the PATRIOT Act that determines whether or not your rights were violated. Each state has its own Bill of Rights and sets its own constitutional standards that must be respected by law-enforcement. Those who habitually lament the supposed "death" of the 4th Amendment would do well to familiarize themselves with this concept.

A citizenry that understands and appreciates 4th Amendment rights is more likely to produce and appoint judges who will rule in this way. Thus, while we must recognize and expose the many threats to the 4th Amendment that have emerged in recent years, it is essential that such conversations do not indulge the same sense of defeatism that leads citizens to waive these rights in the first place, when they matter most.

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Search and Seizure: Vermont Supreme Court Throws Out Marijuana Conviction Based on Warrantless Aerial Surveillance

In a decision handed down last Friday, the Vermont Supreme Court threw out the felony marijuana cultivation conviction of a man caught growing marijuana following a warrantless flyover of his rural property by a military helicopter. Vermont residents have a broad privacy right "that ascends into the airspace above their homes and property," the court held in State v. Bryant.

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marijuana eradication helicopter, Nashville
The case began in 2003, when Stephen Bryant, who owned a remote Addison County home, told a local official he didn't want trespassers. That unnamed official "found defendant's insistence on privacy to be 'paranoid,'" the opinion noted, and suggested that a Vermont State Police team do a flyover to look for marijuana. Under the rules of the state's Marijuana Eradication Team, which uses Vermont Army National Guard helicopters and pilots, flights are supposed to stay 500 feet above the ground. But an August 7, 2003 surveillance flight dipped down to 100 feet and hovered above Bryant's property for half an hour.

Troopers in the chopper saw marijuana plants, then used that information to obtain a search warrant. Bryant was arrested and charged with marijuana possession and cultivation. At trial, he argued that he used marijuana for medicinal purposes to treat an old work injury. Jurors acquitted him of possession, but convicted him of cultivation. In June, 2005, he was sentenced to 45 days. His appeal followed.

The Vermont constitution protects the privacy rights of residents even if it means some pot plants may go unseized, the court held in an opinion written by Associate Justice Marilyn Skoglund for the 4-1 majority.

"We protect defendant's marijuana plots against such surveillance so that law-abiding citizens may relax in their backyards, enjoying a sense of security that they are free from unreasonable surveillance. Vermonters expect -- at least at a private, rural residence on posted land -- that they will be free from intrusions that interrupt their use of their property, expose their intimate activities, or create undue noise, wind, or dust," wrote Skoglund.

"With technological advances in surveillance techniques, the privacy-protection question is no longer whether police have physically invaded a constitutionally protected area. Rather, the inquiry is whether the surveillance invaded a constitutionally protected legitimate expectation of privacy," she added.

"The decision is a boon to all Vermonters," said Middlebury attorney William Nelson, who represented Bryant at the Supreme Court. "It protects our privacy when we are out of doors, on our own property, and in our own yards," he told the Burlington Free Press after the decision.

The opinion serves as further evidence that the state constitution gives Vermonters greater privacy protection than federal laws do, Vermont law school professor Cheryl Hanna told the Free Press. "A lot of people feel the federal government doesn't respect privacy rights after Sept. 11," said Hanna. "Vermonters, at least at the state level, have that additional check on what the government can do."

Search and Seizure: US Supreme Court to Decide Warrantless Search Case

The US Supreme Court agreed Monday to hear a case that could clarify limits on when police using an informant may enter a residence. The case is Pearson v. Callahan (07-751), in which five members of the Central Utah Narcotics Task Force are being sued by a man whose home was searched without a warrant after an informant bought methamphetamine inside.

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US Supreme Court
In 2002, a snitch working with the task force bought $100 worth of meth from Afton Callahan inside Callahan's trailer in Fillmore, Utah. Once the officers waiting outside received the snitch's signal via wire that the deal had gone down, they entered and searched the trailer and arrested Callahan for sale and possession of meth.

Callahan moved to have the evidence suppressed because a warrantless search is unconstitutional, but a state court trial judge rejected that motion. Callahan then agreed to a conditional guilty plea while appealing the Fourth Amendment issue. A state appeals court later agreed with him and overturned his conviction.

Callahan then turned around and sued the task force members for violating his Fourth Amendment rights. The officers then argued that they were immune under the doctrine of "qualified immunity," which holds that government officials cannot be held liable for violating a law that was not clear at the time. A federal district judge, Paul Cassell, ruled in 2006 that the police were entitled to immunity, even if the search was unconstitutional, but the US 10th Circuit Court of Appeals in Denver overruled Cassell, holding that the Constitution was so clear on the need for a warrant that no reasonable police officer would have proceeded without one.

Lawyers for the police officers then appealed to the US Supreme Court, which will have to decide both the search and the immunity questions. But despite what the 10th Circuit held, the federal courts are divided on whether a warrant is necessary in those circumstances. Some federal circuits -- but not the 10th -- have created the strange notion of a "consent-once-removed" exception to the Fourth Amendment. Under that theory, someone who consents to the entry of an undercover police informant is also consenting to the entry of police as well -- even if he doesn't know it. Because the resident gives permission to the snitch to enter, he has also given permission for the police to enter, this novel doctrine holds.

Now, the US Supreme Court will decide if there will be yet one more addition to the holes in the Fourth Amendment created by the drug war. And whether police who conduct unconstitutional searches will have to pay for them.

Drug Testing: Washington State Supreme Court Rejects Random Tests of Students

In a March 13 ruling, the Washington state Supreme Court has rejected the random, suspicionless drug testing of high school students. In so doing, the court threw out a Wahkiakum School District policy in effect since 1999 that forced would-be student athletes to participate in drug tests if they wished to participate in school sports. The state constitution offers protections to students that federal courts have failed to find in the Fourth Amendment, the court held.

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drug testing lab
The ruling came in York v. Wahkiakum, in which the parents of student athletes Aaron and Abraham York and Tristan Schneider sued the school district, arguing that the program violated the state constitution.

In particular, York and Schneider argued that the random suspicionless drug tests violated Article 1, Section 7 of the Washington State Constitution: "SECTION 7 INVASION OF PRIVATE AFFAIRS OR HOME PROHIBITED. No person shall be disturbed in his private affairs, or his home invaded, without authority of law."

As the Washington state Supreme Court noted, the US Supreme Court had held that requiring student athletes to submit to random drug tests is constitutional: "The United States Supreme Court has held such activity does not violate the Fourth Amendment to the federal constitution," wrote Justice Gerry Alexander for the majority. "But we have never decided whether a suspicionless, random drug search of student athletes violates article I, section 7 of our state constitution. Therefore, we must decide whether our state constitution follows the federal standard or provides more protection to students in the state of Washington."

It does indeed, the court held. "The school district asks us to adopt a 'special needs' exception to the warrant requirement to allow random and suspicionless drug testing," wrote Justice Gerry Alexander in the majority opinion. "But we do not recognize such an exception and hold warrantless random and suspicionless drug testing of student athletes violates the Washington State Constitution."

It will be back to the drawing board for school districts in Washington that currently have random drug test policies, thanks to the state Supreme Court.

Is Your Vagina Drug-Free? Albany's Narcs Want to Know

Here's an especially sordid and sickening example of abusive policing in the name of the drug war. A young woman driving in the wrong part of Albany gets pulled over by a special, aggressive drug enforcement squad, the Street Drug Unit. As the Albany Times-Union explains:
ALBANY-- The cops in the marked patrol car had circled through West Hill a couple times keeping an eye on their female target. They were part of the Street Drug Unit, an aggressive squad assigned to help rid Albany's neighborhoods of drug dealers and addicts blamed for much of the city's problems. It was early evening and already dark when the patrol car's emergency lights flashed in the rearview mirror of Lisa Shutter's Mitsubishi sedan on Quail Street, just off Central Avenue. Police records show the officers called out a "Signal 38" to alert a dispatcher they were onto something suspicious and about to pull someone over. They would later write in a report that they had pulled her over for "failure to signal," although no ticket was issued, according to police records shared with the Times Union. The actions of police in the minutes that followed would end in controversy rather than with an arrest. They would also leave Shutter, a 28-year-old single mother from Ravena, shaken and angry after one of the officers allegedly inserted his finger into Shutter's vagina on a public street during an apparent search for drugs. When it was over, "I pulled off down the road and I just cried for probably a half hour," Shutter said. "I called my dad. ... I felt like I had been basically raped."
Sounds pretty horrendous, but then, so is the response from the Albany police when Shutter filed a complaint:
The incident has triggered an ongoing internal affairs investigation by the Albany Police Department. But the handling of that investigation has raised questions about whether the department has sought to cover up the incident. Shutter claims Burris Beattie, a commander in internal affairs, dissuaded her from reporting the incident to a civilian police oversight board. The board, which was formed in 2001 in response to community concerns about the handling of internal police investigations, is empowered to monitor cases involving claims of brutality and civil rights violations against any officer. "He said they (internal affairs) would do a better job," Shutter said, recounting her conversation with Beattie. "He said they would like to keep it 'internal' ... that that's how they like to handle things."
Good thing they kept it aware from the civilian police review board, because it would have gotten to the bottom of things, right? Well, maybe not. It seems that the Albany board is as toothless and feckless as the rest of those organizations that are supposed to provide oversight to law enforcement:
Jason S. Allen, acting chairman of Albany's Citizens' Police Review Board, did not respond to a request for comment about whether all civilian complaints against officers are forwarded to the board. Instead, someone from the review board, which maintains an office at Albany Law School, contacted the department two weeks ago and alerted them that a Times Union reporter was asking questions about their policies, according to a police department source.
Let me get this straight: The civilian police review board, which is supposed to keep an eye on police misconduct, but when the board is contacted by reporters about an alleged incident, it doesn't investigate, but instead alerts the department? With review boards like this…But wait, there's more:
A member of the Citizens' Police Review Board, who spoke on condition of anonymity because only the chairman is authorized to make public statements, said some members of the board have privately suspected that the department may be hiding cases of police misconduct. In other instances, the internal affairs reports are so poorly organized and investigated the board has had trouble reaching decisions and often sends them back for more investigation. The board is supposed to appoint a monitor for complaints involving civil rights violations or allegations of excessive force. "Whether the letter of the law says that this should be the process, the intent and spirit of the law mandates that, especially in cases of civil rights violations, they be submitted to us for review," the board member said. "If not this, what do we review? ... The fact they would dissuade someone from reporting an incident and say they would do the investigation better completely defeats the purpose of why we were created."
One of the two officers involved, Matthew Fargione, is the son of a former Albany narc who is a long-time buddy of the chief, James Tuffey. Fargione Sr. used to be Tuffey's boss on the narc squad. The other officer was Nick Abrams. While Shutter said police internal affairs told her one of the officers had been suspended, apparently that is untrue. Here's how it went down, according to the Times-Union account:
The incident unfolded just after 7 p.m. on Dec. 22. Shutter said she'd just finished some last-minute holiday shopping and became confused as she drove through West Hill looking for a friend she'd agreed to pick up that night. Shutter was behind the wheel of a friend's rented car, and said she saw the police car drive past her twice before the stop. The officer at her window grilled her about drug use and hidden crack pipes, she said. "You fit the profile," the officer said, according to Shutter. "You're a white girl in a rental car." She told the officer she had no drugs and offered to take a Breathalyzer test, but he declined to give one, she said. The officer then allegedly reached through her window and plucked Shutter's cellphone from her lap. He scrolled through the personal information in her phone, she said, asking questions about "private calls" and someone named "Mandie," whose name appeared on her contacts' list. Mandie Buxton, 28, who is Shutter's friend since childhood, was at home when her cellphone rang that night. The man calling identified himself as an Albany police officer and asked whether Shutter was supposed to be picking Buxton up that night. "I said: 'What are you talking about?' " Buxton said. "He said: 'You don't know what I'm talking about?' and then he hung up. I called right back and no one answered." Ordinarily, police need a search warrant to seize or access someone's telephone. Before it was over, Shutter was ordered to stand outside her vehicle with her hands on the trunk. One officer searched her body while a second scoured the inside of the car. They also dumped the contents of her purse and asked whether she'd spent her money on crack because her wallet was empty. Shutter said she never consented to a search of her vehicle, her telephone or her body. She said she pleaded with the officer who allegedly slid his hand down the back of her jeans, and inside her underwear, to stop. "I kept saying over and over ... 'If you have to search me, can you bring me to the precinct?' " Shutter said. A female officer was called to the scene and informed Shutter she was there to search her body, Shutter said. The female officer patted her down, lifted Shutter's sweater and felt along her bra strap, and made Shutter open her mouth and lift her tongue. No reason was given. The police found no drugs or other evidence of criminal wrongdoing before allowing Shutter back in her car. "He said 'you're lucky' ... and that I better not drive around there again," Shutter said. Shutter called Buxton and her father minutes later, crying hysterically, they said. Shutter's mother, Sherry, characterized her daughter's encounter with police as a "life-changing nightmare at the hands of an Albany police officer." "Our daughter did not deserve to be so grossly violated and I want the officers to comprehend and be held accountable for violating our child," she said. "I just keep telling her that 'you did not deserve this.'"
One question: How many other women have been sexually assaulted by these criminals in blue? Another question: Is it okay for women to be digitally raped by cops if there are drugs in their vaginas? This story isn't going over too well in Albany, either. Check out the responses by Albanyites (Albanians?) at the Time-Union's blog page.
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Search and Seizure: US Supreme Court to Hear Case on Warrantless Vehicle Searches

The US Supreme Court agreed Monday to rule on whether police may search a parked vehicle whenever they arrest a driver or passenger. Since a 1981 Supreme Court decision that held that police may search a vehicle for weapons when they arrest an occupant, most courts have held that police have ample authority to search vehicles after an arrest.

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police searching accused drug traffickers' car
But in a case from Tucson, the Arizona Supreme Court disagreed in the case of Rodney Gant. Police surveilling a suspected drug house arrested him on an outstanding warrant for driving without a license after he pulled up in his car. Gant was handcuffed and placed in the back of a police car. Officers then searched his vehicle and found a gun and a bag of cocaine.

In a 3-2 decision, the Arizona Supreme Court threw out the evidence, saying that the post-arrest search of his car violated the Fourth Amendment's ban on unreasonable searches and seizures. With Gant handcuffed in the back of a squad car, police faced no danger from any weapons hidden in the vehicle, the majority said. Because police did not initiate contact with Gant before he got out of his vehicle, the search of his vehicle was not incidental arrest and thus unconstitutional. Police could have obtained a search warrant if they could convince a magistrate they had probable cause, the court noted.

Arizona Attorney General Terry Goddard appealed to the US Supreme Court last fall, arguing that the Arizona Supreme Court decision sets "an unworkable and dangerous test" that would confuse police, prosecutors, and judges. He was backed by other law enforcement agencies and associations, including the Los Angeles district attorney's office and the National Association of Police Organizations.

The case, Arizona v. Gant, will be argued this fall.

Should Candidates For Public Office Be Drug Tested?

No, but it certainly is tempting to subject our political leaders to the same rampant privacy invasions endured by millions of Americans in the name of the war on drugs:
The S.C. Senate Judiciary Committee last week adopted a proposal that could result in a constitutional amendment requiring candidates to take a drug test before seeking public office. As tempting as it seems on the surface, lawmakers should analyze it carefully before they plow into it. There could be rocky ground ahead.

Many believe that if drug testing is employed widely in business, it should be employed in the government, too. What is good for private citizens should be good for elected officials. The goal is to eliminate the use of illegal drugs from the workplace, where a variety of harms might arise. [Beaufort Gazette]
Ok, I understand that people believe that, but why candidates specifically? Is there any evidence of party-prone politicians bumping blow on the public dime?
The proposal's origin started when former S.C. Treasurer Thomas Ravenel was indicted for possession of cocaine. He awaits sentencing, but shortly after the arrest, he checked into a rehabilitation facility. South Carolinians were embarrassed, and rightly so.

South Carolinians have dealt with tarnished images before. In 1903, Lt. Gov. James Tillman shot and killed N.G. Gonzales, a co-founder of The State newspaper, on Main Street in Columbia. Former Congressman John Jenrette was convicted in Abscam. Many S.C. lawmakers were indicted in Operation Lost Trust. S.C.'s agriculture commissioner was arrested for taking at least $20,000 to protect illegal cock fighting.
Cocaine! Murder! Bribery! Cockfighting! What do all these things have in common? You can't prevent them with drug testing. And yes, that includes cocaine, which only stays in your system for a couple days.

Just pause for one moment and contemplate the collective stupidity of all this. Aside from these presumably non-drug related cock-fighting scandals and whatnot, this pretty much comes down to one guy doing some coke and now everyone wants to drug test candidates for public office even though anyone can blast rails of coke all weekend and just declare their candidacy on a Wednesday.

Once again, the popularity of drug testing thrives on the failure of its proponents to comprehend basic facts about how drug testing works. I'd propose the creation of some sort of website to provide that information, but there are already 12 million of those. And, of course, if anyone on South Carolina's Senate Judiciary Committee comes forth to point out that drug testing isn't really very effective against cocaine to begin with, they inevitably render themselves susceptible to accusations of cocaine use and possibly even cock-fighting.
(This blog post was published by StoptheDrugWar.org's lobbying arm, the Drug Reform Coordination Network, which also shares the cost of maintaining this web site. DRCNet Foundation takes no positions on candidates for public office, in compliance with section 501(c)(3) of the Internal Revenue Code, and does not pay for reporting that could be interpreted or misinterpreted as doing so.)
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Canada: Smell of Pot No Grounds for Arrest or Search, Says Saskatchewan Appeals Court

The Saskatchewan Court of Appeal has ruled that the scent of burning marijuana emanating from a car window is not probable cause for an arrest and vehicle search. The decision came in the case of Archibald Janvier, who was pulled over for a broken headlight four years again in La Loche, Saskatechewan.

When the officer approached Janvier's truck, he said he could smell burnt marijuana. He arrested Janvier for marijuana possession based on smelling the burnt weed, then searched the vehicle and found eight grams and a list of names, which led to Janvier being charged with possession for the purpose of trafficking.

At trial, the judge found that the scent of marijuana created a suspicion it had been smoked, but did not provide "reasonable and probable" grounds for either the arrest or the search. To arrest him based simply on the scent of burnt marijuana violated his right to be free from unreasonable search and seizure, the judge ruled as he declared him not guilty.

The Crown appealed the verdict, but the appeals court upheld the judge's verdict. That was the correct decision, said Ronald Piche, Janvier's attorney.

"Until now, police have used the smell of marijuana as reasonable grounds to arrest someone for possession of marijuana," he told Canwest News Service after the decision. "It always struck me as a little thin, frankly. It's frankly a lazy officer's way of giving out a warrant, and getting to check a vehicle out, and oftentimes finding some evidence."

It's hard to possess something that's already been smoked, Piche continued. "The smell alone can't constitute the grounds, because the smell of burnt marijuana -- as opposed to raw marijuana -- gives an inference that the material is gone, it's dissipated into the atmosphere. So how can you say you're in possession of something that doesn't exist?" Piche said. "There may be suspicion that the person is in possession of marijuana, but that's not enough to base an arrest."

Crown prosecutors, unsurprisingly, were not happy. Crown lawyer Douglas Curliss told Canwest the court's decision was based on the lack of any additional evidence to justify an arrest and search. "The court was of the view that all he had was the smell of burnt marijuana alone; he couldn't act." Still, he said, the Crown will not appeal the decision.

Is there a continental trend here? Last March, the Utah Supreme Court held that the smell of burning marijuana is not enough evidence for a warrantless home search. And just last month, a California Appeals Court ruled that even seeing someone smoking pot inside a home was not sufficient grounds for a warrantless entry.

Search and Seizure: The Smell of a Burning Joint Does Not Justify a Warrantless Entry, US Fourth Circuit Holds

Police who entered an apartment after smelling marijuana being smoked there violated the Fourth Amendment's protections against unreasonable searches and seizures, the 4th US Circuit Court of Appeals held in a late January ruling. Evidence found during a subsequent search with a search warrant based on that illegal entry must also be thrown out, the court held.

The decision came in US v. Mowatt, in which Bladensburg, Maryland, police showed up at the door of Karim Mowatt's 10th floor apartment to investigate a noise complaint. They smelled marijuana and demanded they be allowed to enter the apartment, but Mowatt refused, repeatedly asking if they had a search warrant. Police then claimed they feared Mowatt had a weapon, forced their way in, and found guns and drugs. Police then used the evidence they found at the apartment to get a search warrant to further search the apartment. Based on contraband found there, Mowatt was charged with various drug and gun offenses.

Before trial, the trial judge denied Mowatt's motions to suppress the evidence, buying prosecutors' contentions that the warrantless entry was lawful because "the risk of destruction of the evidence of marijuana possession constituted exigent circumstances." Mowatt was found guilty in May 2006 and sentenced to a total of 16 years and 5 months.

The 4th Circuit disagreed, noting it was only the arrival of the officers at the door that created any exigent circumstances. "[A]lthough the officers had every right to knock on Mowatt's door to try to talk to him about the complaint... without a warrant, they could not require him to open it," Judge William B. Traxler Jr. wrote. The officers "needed only to seek a warrant before confronting the apartment's occupants," Traxler wrote. "By not doing so, they set up the wholly foreseeable risk that the occupants, upon being notified of the officers' presence, would seek to destroy the evidence of their crimes."

US Attorney Rod Rosenstein, who argued the case, wasn't happy, he told the Maryland Daily Record. "The implications of this opinion are very broad for what police officers should do in this situation -- which isn't an uncommon one," he said. He added that he is working with the Justice Department to decide whether to appeal the decision.

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