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Search and Seizure: Supreme Court Limits Police Car Search Powers

A narrowly divided US Supreme Court Tuesday refused to expand police search powers at the expense of privacy rights, ruling that police cannot search a suspect's vehicle after the suspect has been detained and arrested absent probable cause. The 5-4 decision came in Arizona v. Gant.
car search
In that case, Rodney Gant was a suspect in a drug investigation. As Tucson police surveilled a suspected drug house where they had come into contact with Gant earlier, Gant drove up and exited his vehicle. Having checked Gant's record after the earlier encounter, police knew he had an outstanding arrest warrant for driving with a suspended license. Police arrested and handcuffed Gant, then placed him in the back of a patrol car. Police then searched his vehicle, finding a gun and some cocaine. Gant was charged with and convicted of drug possession and sentenced to three years in state prison.

Before trial, Gant had sought to suppress the evidence against him, arguing it was the result of an unlawful search, but the trial judge denied that motion. Gant appealed the verdict, winning in the Arizona Supreme Court. The state of Arizona then appealed to the US Supreme Court.

To no avail. While the Supreme Court acknowledged police powers to make a search incident to arrest, the justices noted that the purposes of such searches were to ensure officer safety and the preservation of evidence. With the suspect cuffed in the back seat of a patrol car and with no reason to preserve any "evidence" of Gant's offense -- driving with a suspended license -- the court held that police needed a search warrant to conduct a search of his vehicle.

"Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest," wrote Justice John Paul Stevens for the majority. "When these justifications are absent, a search of an arrestee's vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies."

A rare victory for the Fourth Amendment from the Roberts court.

Feature: Supreme Court Hears Arguments in Junior High Girl Strip Search Case

The US Supreme Court heard oral arguments Tuesday in Safford Unified School District #1 v. Redding, a case that originated in a school administrator's decision to subject then 13-year-old Savannah Redding to a strip search after another student said she had obtained prescription-strength Ibuprofen tablets from her.
US Supreme Court
The case began when administrators in Safford, Arizona, received a tip from a student and his parents that another child possessed the tablets and planned to give them to other students at lunch. Authorities confronted the second student and found Ibuprofen tablets in her possession. The second student told administrators she had obtained the pills from Redding.

Redding was escorted to the principal's office, and Redding's backpack and outer clothes were searched, but no pills were found. She was then told to remove her outer clothing in front of the school nurse and an administrative assistant, both female. Standing in her underwear, she was ordered to pull out her bra and underwear to allow any hidden pills to fall free. None did.

Redding and her parents then sued the school district for violating her constitutional right to be free of unreasonable searches and seizures. Redding won in the 9th US Circuit Court of Appeals, and the school district appealed to the Supreme Court.

The justices' questions during oral arguments Tuesday suggested that, as they sought to find a balance between student privacy and public school safety, they were tilting toward the latter. They appeared inclined to give school administrators broad authority to do what is necessary to protect kids from drugs.

That's what attorneys for the school district argued. "Searching any place where she might be reasonably hiding that contraband was constitutionally permissible" because the school district was acting as guardian, not law enforcement, said Matthew Wright, counsel for the district. "It's not like a criminal issue where they're trying to prosecute. This is a case where they're trying to protect," Wright said. "It is best for this Court to defer to their judgment... and not second-guess those rules."

Justice David Souter, noting that the drug at issue was Ibuprofen, interjected that, "At some point, this gets silly."

Still, Souter also remarked that it could have been a more dangerous drug, and the consequences of not acting could be tragic: "My thought process is, I would rather have the kid embarrassed by a strip search, if we can't find anything short of that, than to have some other kids dead because the stuff is distributed at lunchtime and things go awry."

Justice Antonin Scalia pressed Wright about whether a body cavity search would be permissible. While Wright tried to dance around that question, saying body cavity searches were not done because school officials were not trained to do them, Scalia kept pressing. In the end, Wright conceded that "I could see that result."

Despite concerns about how far school administrators could go in searching for drugs, the justices seemed even more concerned about more dangerous drugs. The justices repeatedly asked hypothetical questions about what if it had been heroin or methamphetamine instead of Ibuprofen.

When it came time for Redding's side of the case to be argued, a Justice Department attorney took the lead. "We believe that without some particularized suspicion or some specific indication that this, the location, was a likely one to contain the drugs, that this search was excessively intrusive," said attorney David O'Neil. "And this is not a new standard."

"We agree with the federal government that before conducting an intrusive strip search a school needs to have location-specific information," argued Adam Wolf of the ACLU Drug Law Reform Project. "And while this case can begin and end with that well-accepted proposition, it's also important to recognize that a school needs greater -- a greater degree of suspicion to conduct a strip search than to conduct an ordinary backpack search. This search violated the clearly established point that in order to conduct an intrusive search of one's body, the searching official needs to at least reasonably believe that the object is located underneath the undergarments. The Fourth Amendment does not account -- it does not countenance the rummaging on or around a 13-year-old girl's naked body."

Justice Stephen Breyer tried to get Wolf to elaborate on "how bad" such searches really were, noting that students often changed clothes at school for gym class, but that only inspired Justice Ruth Bader Ginsburg, the only woman on the court, to intervene. "It wasn't just that they were stripped to their underwear," she said incredulously, referring to Redding and another girl similarly searched at the school. "They were asked to shake their bra out, to stretch the top of their pants and shake that out."

While the justices were weighing constitutional rights and student safety, youth rights advocates had little trouble sorting out the issues. "Strip searching eighth graders is way over the line," said Amber Langston, eastern region outreach director for Students for Sensible Drug Policy (SSDP). "This kind of thing is a horrid example of the failure of our drug search policies in public schools. They said they were trying to protect the children, but who was protecting Savannah Redding from the humiliation inflicted on her by school officials?"

Students deserve the same constitutional rights as anyone else, said youth sociologist and Youth Facts founder Michael Males. And school districts should be making better choices, he added.

"Students should only be detained or searched under the same rules applied to adults," Males said. "If authorities have probable cause to suspect illegal behavior that would satisfy standards of reasonable suspicion, they can detain and search suspects. School strip searches require a very high level of probable cause, yet they typically seem based on gossip."

Males called the Redding case "particularly bizarre," noting that it only involved Ibuprofen. "School officials didn't seem interested in searching lockers, desks, or anywhere except inside the girl's underwear," he noted. "These kinds of traumatic cases are, again, why I keep arguing against raising hysteria about teenage drug use."

"Adults inspecting children's private parts is something we should be very wary of," said SSDP's Langston. "This was all over prescription-strength Ibuprofen, there was no evidence Savannah even had it except for the word of another student who was in trouble herself. If the Supreme Court allows this to stand, we will have given too much power to school officials to conduct such searches."

It's not just students but the school districts themselves that suffer from overbroad search policies, Males said. "These types of school searches have wound up costing hundreds of thousands or millions of dollars in legal costs and, to my knowledge, virtually never find anything, which raises questions of why administrators are allocating scarce education resources to them."

The Supreme Court will decide the case later this summer. All indications are it will reverse the appeals court and uphold this expansion of school administrators' authority to do "whatever it takes" to protect students from drugs.

Poking Around in a Teenager's Panties is a Sick Crime (Unless It's a Drug Search)

At age 13, Savana Redding was strip-searched by school officials who suspected her of possessing prescription Ibuprofen. It turned out their information was bad, but they are so proud of what they did that they've defended their actions all the way to the U.S. Supreme Court. Soon, the right to drug-search young girls' underpants may be firmly enshrined in our jurisprudence, so that the whims of drug hysteria will decide when it's appropriate to do that, rather than some old list of high-minded legal principles.

That this incident even happened is disturbing enough before one tries to come to terms with the fact that the Supreme Court appears likely to uphold the search. Perverts.

Important 4th Amendment Supreme Court Victory

Dear Friends:

Today, the Supreme Court handed down a great ruling in Arizona v. Gant, which increases 4th Amendment protection against warrantless vehicle searches. We've been following the case for a while, and this outcome is exciting.

Please visit our blog for FYR Associate Director Scott Morgan's analysis on the decision's likely impact.



Steve Silverman

P.S. Flex Your Rights is the only organization focused solely on defending the 4th Amendment and teaching citizens to understand their rights during police encounters. If you support our efforts, please consider making a one-time tax-deductible donation today. As you know, we can't do this important work without your support.

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Supreme Court Restricts Warrantless Vehicle Searches

The Supreme Court's decision in Arizona v. Gant today was a pleasant surprise. The Court struck a blow against the deeply flawed search-incident-to-arrest doctrine that has permitted police to perform a vehicle search anytime someone in the car is arrested. For the last 28 years, concerns over officer safety have been held to permit ridiculous numbers of automatic vehicle searches that had more to do with the drug war than officer safety.

My thoughts on the case are over at Flex Your Rights.

Even Cops Are Getting Screwed by Inaccurate Drug Tests

Via Radley Balko, this one is hard to believe:

A decorated ex-cop who claimed he tested positive for cocaine because he ingested the drug during oral sex with his girlfriend can't have his job back, a Manhattan judge has ruled.

Supreme Court Justice Eileen Rakower last month shot down helicopter pilot Jon Goldin's attempt to overturn his April 2008 dismissal from the NYPD.

Goldin, a 15-year veteran, tested positive for cocaine in October 2006 in a random drug test using hairs from his arm.
Goldin's lawsuit said the cocaine in his system was the product of "passive ingestion" from performing oral sex on girlfriend Coreen McCarthy, who, once he tested positive, admitted to him that she was a regular cocaine user. [New York Daily News]

Needless to say, this cocaine-ingested-through-oral-sex line sounds like the laugh-out-loud lame excuse of the century. I'm highly inclined to doubt that such a thing is even remotely possible, but as to the question of whether or not the officer was actually using cocaine, I don’t know what to think. If his colleagues are to be believed, the story on this guy is that he's well known for not doing drugs. Supposedly, he's an "adherent of the 'straight edge' lifestyle that rejects substance use" and everyone knows he doesn't get high:

More than 70 friends went to bat for the ex-cop, saying they had never seen him take even a sip of coffee and that he abstained at bars while others drank booze.

I don't know these people, but I trust them more than I trust the drug test itself, because drug tests are bullshit. They're just not accurate. If a bunch of people come forward complaining that someone got railroaded by a drug test, I'm going to assume that's exactly what happened. It's happened before.

Notwithstanding the absurdity of the officer's crazy oral sex explanation, I wouldn’t be at all surprised if he's the innocent victim of a false positive drug test result. If officer Goldin is telling the truth, then it's worth taking a moment to contemplate the irony that a cop who lives by a vehement anti-drug philosophy ended up getting screwed over by one of the numerous fraudulent technologies designed to ruin the lives of drug users.

I wonder what he thinks of the drug war now, after finding himself on the receiving end of its virtually infinite incompetence.

Flex Your Rights

I've posted a couple new items in the Flex Your Rights blog recently that are worth checking out. We've got an awesome site upgrade coming out soon, so I'm trying to get back into the habit of doing at least a couple posts a week.

The focus is on 4th Amendment and police misconduct issues rather than drug policy specifically, but I'd love to see some of you commenting over there if you're interested.

Feature: "Dangerous" Drug Raids? Not So Much for Police -- Unless They Make Them So

Law enforcement officials justify the frequent use of heavily-armed SWAT teams and no-knock warrants -- police do about 50,000 SWAT raids per year -- as protecting officer safety. The dramatic deaths of two officers, Chesapeake, Virginia's Jarrod Shivers and the FBI's Samuel Hicks, both caused by the choice to use SWAT tactics, suggests the opposite interpretation. So does the small number of officer fatalities relative to the large number of drug arrests across the country each year -- with 1.8 million drug arrests in the US during 2008, a total of seven police officers were killed while doing drug enforcement, according to statistics on police line of duty deaths compiled by the Officer Down Memorial Page. Three of the seven were killed doing drug raids. An eighth officer was killed following a traffic chase, not initiated as part of drug enforcement, of a suspect (a former police officer) who was on bail facing a drug possession charge.

[Ed: We originally included a ninth officer in this list, Timothy Scott Abernethy, as a second example of a case in which the drug war appeared to have played a role, despite it not having started as a drug investigation. A colleague of Officer Abernethy criticized our inclusion of his case as having too tenuous of a relation to the drug war if any, and after reviewing it we concluded that our decision to include Officer Abernethy in the listing was erroneous, and we have edited this article accordingly. If you would like to read more about this, click here.]
drug raids -- not as dangerous as they make them
"In the last 10 or 11 years, traffic accidents killed more officers than anything else," said Kevin Morison of the National Law Enforcement Officers Memorial Fund, which also compiles a list of line of duty deaths. "When it comes to being killed enforcing the laws, traffic stops and domestic violence seem to be the top two. Serving warrants can also be dangerous," he said.

According to the foundation, 140 officers died in the line of duty last year, 71 of them in traffic accidents. Only 41 officers died of gunshot wounds, the lowest figure since 1956. One police officer was stabbed, one beaten to death, one drowned, one was electrocuted, one died in a train accident, two were blown up by a bomb, three died in aircraft crashes, and 17 died of job-related illnesses. Seventeen officers were struck and killed by other vehicles, typically while directing traffic.

According to historical data provided to the Chronicle by the foundation, last year's low death toll among officers enforcing the drug laws is not a fluke. In the decade between 1978 and 1988, an average of 6.5 officers were killed each year; in the following decade, the number was 6.2; and in the last 10 years, an average of 4.3 officers were killed each year enforcing the drug laws. The single bloodiest year for drug law enforcement was 1988, when 12 officers died.

There are slight differences between figures provided by the foundation and those provided by Officer Down, most likely related to the way each death is coded. The numbers below are based on Officer Down's count, as well as additional investigation done by the Chronicle.

Here is the list of those who gave their lives maintaining drug prohibition:

  • Chesapeake, Virginia, Police Detective Jarrod Brent Shivers was shot and killed while battering down the door of Ryan Frederick on January 17, 2008. Although Frederick was supposedly running a marijuana grow, no grow was found. Frederick was convicted of manslaughter and sentenced to 10 years in prison.
  • Senior Border Patrol Agent Luis Alberto Aguilar was run over and killed by Mexican drug smugglers near San Diego on January 19, 2008.
  • Harris County, Texas, Constable's Office Corporal Harry Theilepape died January 26, 2008 of gunshot wounds suffered nearly a month earlier when he arrested a suspect for possessing drugs and illegally possessing a handgun.
  • Grundy County, Tennessee, Sheriff's Deputy Sheriff Anthony Shane was shot and killed June 5, 2008, serving a probation violation arrest warrant for a man on a drug charge. The shooter shot himself as more police closed in, saying, "God just let me die. I don't want to live in this hell anymore."
  • Virginia Beach, Virginia, Police Detective Michael Smith Phillips was shot and killed while conducting an undercover drug buy on August 7, 2008.
  • Chicago Police Officer Nathaniel Taylor Jr. was shot and killed while executing a search warrant as part of the gangs and drug squad on September 28, 2008. The shooter had a history of violent and drug offenses.
  • FBI Special Agent Samuel Steele Hicks was shot and killed by a suspect's wife during a no-knock search of a Pennsylvania home on November 19, 2008. The shooter, who claimed she fired in fear for her life, now faces murder charges.
  • Another officer, Texas Highway Patrol Trooper James Scott Burns, was shot and killed following a traffic stop and brief car chase on April 29, 2008. The killer was a former police officer turned drug offender and manufacturer, who was out on bail facing a drug possession charge at the time and who eventually committed suicide. Whether Burns belongs on this list is open to interpretation -- he was not doing drug enforcement, so far as we know, when initiating this traffic stop, but appearances suggest that past drug charges and fear of more may have played a role.

These officers died in a year where there were more than 1.8 million drug arrests, as noted above, meaning police can expect to do 200,000 drug busts for each officer killed. In addition to the three who were killed on drug raids, two died after stopping drivers who had been arrested and imprisoned before on drug charges and were apparently not ready to return to prison, one was killed doing undercover work, one was killed in an encounter with smugglers, one was killed arresting a drug suspect, and one was killed attempting to bring in a probation-violating drug offender.

SWAT raids seem no less hazardous for the occupants of the homes being hit than they are for the police conducting them. (The following information is taken from the police militarization archives at Radley Balko's The Agitator blog. Readers with the stomach for it can find much, much more there as well.)

On January 6, 2008, police in Lima, Ohio, shot and killed a 26-year-old mother of six, Tarika Wilson, during a raid aimed at her boyfriend. The police shooter was eventually found not guilty for killing her.

The following day in North Little Rock, Arkansas, a police SWAT team raided the home of Tracy Ingle. Awakened by a ram battering his door and thinking he was under attack by armed robbers, Ingle grabbed a broken pistol to scare them off. Officers fired multiple shots, wounding him five times. He spent a more than a week in intensive care before police removed him, took him to the police station, and questioned him for five hours. He was charged with running a drug enterprise even though no drugs were found.

In May, Connecticut police raiding an apartment after being informed that people were smoking crack there, shot and killed Gonzalo Guizan, who was unarmed. Police said he charged at them. All they found was a crack pipe.

It's not just people. Dogs also seem to be a favorite target of drug-raiding police. In what is only one case out of the dozens that seem to occur every year, Cheye Calvo, the mayor of the Washington, DC, suburb of Berwyn Heights, Maryland, saw his two dogs shot and killed by a Prince George's County SWAT team that burst into his home after his mother-in-law accepted delivery of a package containing marijuana. Calvo and his family were twice victimized, once by the pot traders who used his address to have their dope sent to, and again by the gung-ho, itchy trigger finger police.

It is unclear how many people were killed by police enforcing the drug laws in general or conducting drug raids in particular. Although in 1999 Congress authorized legislation requiring law enforcement agencies to submit such data, it neglected to fund the program. The incidents mentioned above are only some of the most egregious and well-publicized, but they suggest that even if doing drug raids isn't particularly dangerous for police, it is for their victims.

"Tactically, those SWAT units are quite impressive, but they're vastly overused," said Peter Moskos, an assistant professor of Law, Police Science, and Criminal Justice Administration at the City University of New York's John Jay College of Criminal Justice, former Baltimore police officer, and author of "Cop in the Hood." "The problem is once you've got those units, you're going to use them. Their goal is to have overwhelming force and have all the cops live, but innocent people die," he said.

Law enforcement can have it both ways, said Balko, author of Overkill: the Rise of Paramilitary Policing in America. "If not many police are being killed in drug raids, they can say these tactics are working," he said. "If more are being killed, they can say this is why they need to be more aggressive."

Drug squad cops are a special breed, said Moskos. "Many cops never would want to work in one of those units," he said. "Even though the raids are pretty safe, they do more dangerous things like undercover operations. These guys tend to be whiter, more conservative, and guys who like breaking down six doors a day. In the drug squads in particular, they really tear it up. There is a certain vindictiveness; they think 'these people are assholes, they deserve it.'"

"Nobody has to be killed at all if they would just legalize the stuff," said David Doddridge, a 21-year veteran of the LAPD who rose to the rank of narcotics detective before he retired in 1994. "When I first started, we used to go to roll call, and they would tell us who has warrants, and we would drive out there and knock on the door. Then we went to a narcotics bureau, and we worked in teams, with battering rams," he recalled. "More citizens died than police," Doddridge said.

"I spent several years down in South Central kicking in doors and raiding homes, and probably served 50 search warrants," said Doddridge. "We weren't SWAT, just a couple of narcotics detectives with our vests on, and none of us got seriously injured. There was seldom any resistance."

Narcotics could be dangerous, Doddridge said, but not because of the raids. "The raids themselves are not very dangerous, more a danger to civilians," he said. "Doing plain clothes by yourself and buying drugs when nobody knows you're a cop is when it gets dangerous. We had a couple of our officers get beaten up buying drugs undercover on the street."

Things began to change with the introduction of the federal Byrne grant program to state and local law enforcement in the late 1980s, said Doddridge. "Then, with Byrne, we got Velcro vests and holsters, we got Kevlar helmets, all that stuff. Now, there are thousands of SWAT teams across the country. They don't have a lot to do, so they end serving drug warrants now."

It's a fool's errand, said Doddridge, who has, since his retirement, joined Law Enforcement Against Prohibition. "After a year or so of doing those drug busts, I thought it was crazy. We weren't doing any good. And I thought about the looks of the faces on those families, the children crying when we're dragging their Dad or their brother out. I thought to myself what are we doing? -- these weren't real criminals out robbing and attacking people. I started feeling really bad about all that."

Short of legalizing drug use and the drug trade, which would be his preferred option, Moskos said, there are a couple of things that could be done. "One thing we could do is just turn back the clock," he said. "It wasn't until the 1970s that we got all obsessed about drugs. I think we should just treat it like other minor crimes, like back in the 1950s. One problem is the productivity of drug squads is measured by how many doors they knock down. They need to knock down fewer doors."

Eliminating outdoor drug markets would help, too, Moskos said. "If you're worried about the violence there, you have to push it indoors, off the street. Fear of arrest and raids on their homes push dealers into the street, but maybe we could call a truce. Close your blinds, keep the music down, act like a good neighbor, then we could leave you alone."

Pregnancy: Missouri Bill to Criminalize Drug Using Mothers-To-Be Faces Tough Scrutiny, Similar Tennessee Bills Die

A Missouri bill that would criminalize drug use by pregnant woman got a hearing Tuesday, but the reception was not very friendly. A pair of similar bills in Tennessee died on the vine this week.

In Missouri, Sen. Brad Lager (R-Savannah), author of the bill, SB 459, ran into a skeptical reception at the state Senate Judiciary Committee. Sen. Jack Goodman (R-Mt. Vernon) got Lager to agree to an amendment that would block prosecution if the woman was seeking treatment, but that wasn't enough for Sen. Jolie Justus (D-Kansas City), who said the bill was unnecessary because there were already remedies for women who harmed their children.

Nor was it good enough for children's, welfare, and civil rights advocates. "We sit here in a room of privilege, but there are those who live in dire circumstances that we are blessed not to understand," said Colleen Coble of the Missouri Coalition Against Domestic and Sexual Violence. For the targets of the bill, "the public policy means nothing," Coble said. "What they know is, you go to the doctor, you go to jail."

Also testifying against the bill were the American Civil Liberties Union, Planned Parenthood, and the Missouri Catholic Conference.

But Lager remained determined to forge forward, and a vote could take place as early as next week. "I just believe strongly that this type of action and this type of behavior cannot be condoned," he said.

A similar effort in Tennessee, however, has already bitten the dust, according to National Advocates for Pregnant Women, which released an analysis of the Tennessee bills that laid out the case against such legislation in general and in Tennessee in particular. The advocacy group has also produced a fact sheet delineating just what is wrong with criminalizing women who use drugs while pregnant.

Drug Testing: Widely Publicized West Virginia Bill to Test People on Public Assistance Dies

A bill by West Virginia Republican state Del. Craig Blair that would have mandated random drug testing of people who receive food stamps or unemployment benefits received nationwide publicity, but no respect in Charleston, where the measure is stalled in committee and won't even get a hearing. A last chance effort by Blair to force the bill to a House floor vote Tuesday was defeated 70-30 on a straight party line vote.

The bill, HB 3007, picked up a handful of cosponsors, but also attracted heated opposition from welfare rights, civil liberties, and children's advocacy groups. Opponents argued that requiring drug testing to receive government benefits was most likely unconstitutional, more likely to impact poor families negatively than not, and just downright cruel.

Blair argued that the state was facing "a crisis" of drug abuse among state aid recipients, but never produced evidence to back up his claim. But he has still achieved something: Instant notoriety. Blair, who is not publicity-shy, created his own web site to push the bill, and has gotten national media attention. He claims his web site has 50,000 hits now.

But he has also suffered the slings and arrows of outraged fellow legislators. Del. Sally Susman (D-Raleigh) hand delivered a letter to Blair calling his bill the "most ridiculous" of the session. House Judiciary Chairwoman Carrie Webster (D-Kanawha) said of Blair that "he has an idea, but he has no plan," as she explained that many bills never make it to committee agendas.

Blair and his drug testing bill are gone for this year. But similar efforts remain alive in a handful of other states.

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