Search and Seizure

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Search and Seizure: Strip Search of School Girl for Ibuprofen Went Too Far, Federal Appeals Court Says

An Arizona school violated the constitutional rights of a 13-year-old school girl when it subjected her to a strip search to see if she was carrying the pain reliever ibuprofen, a narrowly divided federal appeals court ruled last Friday. Lower courts had held that the school did not violate Fourth Amendment strictures against unreasonable searches and seizures because officials have a legitimate interest in protecting students from prescription drugs.

Ibuprofen is available in lower doses as a non-prescription drug and is found in common medications such as Advil and Motrin to treat ailments like cramps and headaches. Higher doses of the drug require a prescription.

The ruling came in Redding v. Stafford Unified School District, in which honor student Savana Redding sued the district over the 2003 search. On the day in question, Safford Middle School Principal Kerry Wilson found two prescription strength ibuprofen tablets in the possession of one of Redding's classmates, who fingered her as the source. After escorting Redding to his office, Wilson informed her of the accusation, which she denied. Redding then agreed to a search of her possessions, which turned up nothing. Wilson then ordered a female administrative assistant to conduct a strip search in the school nurse's office. In the school nurse's office, Redding was ordered to strip to her underwear. She was then commanded to pull her bra out and to the side, exposing her breasts, and to pull her underwear out at the crotch, exposing her pelvic area. The strip search failed to uncover any ibuprofen pills.

"The strip search was the most humiliating experience I have ever had," said Redding in a sworn affidavit following the incident. "I held my head down so that they could not see that I was about to cry."

For the 9th US Circuit Court of Appeals, the search was not only humiliating, but unconstitutional. "Directing a 13-year-old girl to remove her clothes, partially revealing her breasts and pelvic area, for allegedly possessing ibuprofen, an infraction that poses an imminent danger to no one, and which could be handled by keeping her in the principal's office until a parent arrived or simply sending her home, was excessively intrusive," Justice Kim McLane Wardlaw wrote for the 6-5 majority. "A reasonable school official, seeking to protect the students in his charge, does not subject a thirteen-year-old girl to a traumatic search to 'protect' her from the danger of Advil. We reject Safford's effort to lump together these run-of-the-mill anti-inflammatory pills with the evocative term 'prescription drugs,' in a knowing effort to shield an imprudent strip search of a young girl behind a larger war against drugs," Wardlaw wrote.

"It does not take a constitutional scholar to conclude that a nude search of a 13-year-old girl is an invasion of constitutional rights. More than that: it is a violation of any known principle of human dignity. The self-serving statement of a cornered teenager facing significant punishment does not meet the heavy burden necessary to justify a search accurately described by the 7th Circuit as 'demeaning, dehumanizing, undignified, humiliating, terrifying, unpleasant [and] embarrassing,'" Wardlaw continued. "And all this to find prescription-strength ibuprofen pills. No legal decision cited to us, or that we could find, permitted a strip search to discover substances regularly available over-the-counter at any convenience store throughout the United States."

Not all the justices agreed. In his dissent, Justice Michael Daly Hawkins wrote: "We should resist using our independent judgment to determine what infractions are so harmful as to justify significantly intrusive searches. Seemingly innocuous items can, in the hands of creative adolescents, present serious threats. Admittedly, ibuprofen is one of the mildest drugs children could choose to abuse. But that does not mean it is never harmful."

The ACLU Drug Law Reform Project, whose Adam Wolf, helped argue the case, was pleased. "Students and parents nationwide can breathe a sigh of relief knowing that adolescents cannot be strip searched based on the unsubstantiated accusation of a classmate trying to get out of trouble," said Wolf, co-counsel in the case with the law firms Humphrey & Petersen and McNamara, Goldsmith, Jackson & Macdonald, in a statement greeting the ruling. "This ruling is a victory for our fundamental right to privacy, sending a clear signal that such traumatizing searches have no place in America's schools."

Redding pronounced herself pleased, too. "I took my case to court because I wanted to make sure that school officials wouldn't be able to violate anyone else's rights like this again," she said in the same statement. "This was one of the most traumatic experiences of my life, and I am relieved that a court has finally recognized that the Constitution protects students from being strip searched in schools on the basis of unreliable rumors."

Drug Prohibition: No Clue in the Texas Legislature

If drug reform is making any headway in the Lone Star State (and it is), there was little sign of it Wednesday at an Austin hearing of the state Senate Criminal Justice Committee. The committee is charged with examining current drug laws to see which are working and which are not and trying to come up with more effective drug policies.

With Mexican drug trafficking organizations sending billions of dollars worth of drugs across the border each year, much of it through Texas, state and local law enforcement agencies have been cooperating with federal agents to try to crack down on the trade. But it hasn't seemed to have had any impact, and that was a frustration for Sen. John Whitmire (D-Houston).

"It don't affect the price of it at all, which means it ain't made a dent. Still huge amounts are getting through," he said in remarks reported by Austin TV station KVUE. "If you know where it's coming from, why can't you do more about it?" he asked plaintively.

Whitmire's ignorance of the laws of supply and demand when it comes to drug prohibition is apparently equaled only by his ignorance of the US Constitution, and particularly the Fourth Amendment. At least, that's what his next comment suggested.

"If in fact so much of the narcotics is just coming up and down our highways and the main roads out of Mexico, why don't we just pull over more trucks?" Whitmire said. "It would be fun to try. I like that, zero tolerance."

Of course, every vehicle entering the US from Mexico must go through US Customs at the border. And then there's the Border Patrol checkpoints on highways leading north from the border. And then there's the saturation level patrols of those highways (although, to be fair, Texas cops are as interested in cars heading south as those heading north, because while the latter may contain drugs, the former may contain cash). But none of that is enough for Whitmire. Nor does it cause him to question his premises.

It looks like it will be business as usual in the drug war in Texas.

Feature: Summer's Here and the Time is Right for... Getting Busted Going to the Festival (If You're Not Careful)

With Memorial Day now just a memory, the summer music festival season is on -- and with it, special drug law enforcement aimed at festival goers in what could be called a form of cultural profiling. If years past are any indicator, music lovers should be prepared to encounter everything from announced "Drug Checkpoints" that aren't -- they are instead traps to lure the freaked out -- to real, unconstitutional, highway drug checkpoints masquerading as "safety checks" (complete with drug dogs) to undercover cops working inside the festival grounds themselves.

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Richard Anderson, via commons.wikimedia.org
Nationally known festivals like Bonaroo in Tennessee and Wakarusa in Kansas, as well as countless lesser festivals, especially in rural areas, have drawn special law enforcement efforts in the past. With this year unlikely to be any different, festival goers will need to know their rights and how to exercise them when they encounter the cops.

The police enforcement actions are already getting underway. Last weekend, the 2008 Summer Camp Festival in Chillicothe, Illinois, drew some 13,000 fans to hear a diverse line-up of bands including the Flaming Lips, George Clinton & Parliament/Funkadelic, Blind Melon, the Roots, and the New Pornographers. It also drew city and state police, who claimed 20 drug arrests -- for marijuana, ecstasy, and LSD -- between them in and around the festival.

The police were pleased. "I think a lot of it had to do with all of the agencies getting together before the event and really planning out our attack," Chillicothe Police Chief Steven Maurer told local HOI-19 TV News. "Our goal is to prevent it from coming in and that's what we did a lot of."

Meanwhile, down in northeast Georgia, some other law enforcement agencies had also gotten together to plan an attack. This one wasn't aimed directly at concert-goers, but at the highway-traveling public in general. In what the Northeast Georgian described as "one of the county's largest highway interdiction and safety checks in at least five years," personnel from the Habersham County Sheriff's Office, Northeast Georgia Drug Task Force, Georgia National Guard Counter Drug Task Force, Georgia State Patrol, Georgia Bureau of Investigation, Georgia Department of Public Safety Motor Carrier Compliance Unit, Lee Arrendale State Prison, Phillips State Prison and Cornelia Police Department participated in a 24-hour checkpoint on a local highway.

Police bragged about the success of their checkpoint, which netted 74 arrests, 31 of them for drug offenses. "It worked well, I thought," said Habersham County Sheriff De Ray Fincher. "The operation resulted in a seizure of $36,000 in illegal drugs. And a total amount of currency, drugs and vehicles seized is estimated to have a value of $82,000."

Police did write some tickets for traffic offenses, Fincher told WNEG-TV 32 News. "We got a lot of people with no insurance, no driver's license or suspended license," he said. And some pot smokers: "The majority of our cases were marijuana cases; however, we did get several methamphetamine and we got one case of cocaine," Fincher explained.

In a 2000 Supreme Court decision, Indianapolis v. Edmonds, the high court held that indiscriminate highway drug checkpoints were unconstitutional since motorists were being stopped without suspicion for a law enforcement -- not a public safety -- purpose.

But Fincher was open about his constitutionally-suspect highway checkpoint. "We are trying to do everything we can to prevent drug activity in Habersham County, whether it's just passing through or stopping here," he said, noting that drug arrests in the county were on the rise. "That just means we've taken a real aggressive approach to drug enforcement."

"In the wake of the Indianapolis case, law enforcement has tried to figure out ways to still conduct drug checkpoints that comport with that ruling," said Adam Wolf of the ACLU Drug Law Reform Project. "Intent is the name of the game. If the intent is to conduct a checkpoint basically for law enforcement purposes, that's not okay. If it's for public safety purposes, such as sobriety checkpoints, that is okay."

A constitutional challenge to any given checkpoint would turn on intent, said Wolf. "If it turns out the intent was primarily to be a drug checkpoint, that would be an unreasonable search and not comply with the Constitution," he said. "That kind of checkpoint should be shut down, but it would take someone to challenge it."

Noting Sheriff Fincher's report of cash and goods seized, Wolf suggested the purpose of the checkpoints could really be about something other than law enforcement or public safety. "So often these things are being done to fund law enforcement agencies. Asset forfeiture is really a cash cow," he said.

Whether the checkpoints or other special law enforcement tactics are to raise money, wage the drug war, or indeed for "public safety," experts consulted by the Chronicle sang a remarkably similar song: Be prepared, don't be stupid, and don't give away your rights.

"The most efficient way to get arrested for marijuana possession short of blowing pot smoke in an officer's face is to smoke marijuana while driving or parked in your car, especially on the way to a festival," said Steven Silverman of the civil liberties group Flex Your Rights, which has released a video instructing people how to flex theirs. "You have a minimal expectation of privacy, and it reeks. Officers can smell it, and if they can smell it, that's probable cause to search you."

"Keep your private items out of view," recommended the ACLU's Wolf. A baggie full of weed on the front seat is all the probable cause an officer needs to search the vehicle and arrest the owner.

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car search
"The only sure thing to do is not to carry," said Keith Stroup, founder and currently senior counsel for the National Organization for the Reform of Marijuana Laws (NORML). "But the problem with that is there may or may not be good marijuana available at the festivals. If you're going to bring something with you, keep the quantity as small as possible, and for God's sake, don't smoke in the car!"

If you are stopped at a checkpoint (or pulled over for any reason) and you haven't provided police probable cause to search you or your vehicle, now is the time to exercise your rights. People in such situations should be polite but assertive, the experts said.

"If you are pulled over by police for any reason, the officers are very likely to ask you to consent to a search," said Silverman. "Don't do it. Never, ever consent under any circumstances. It might be couched in terms of a command, but it is a request. If you consent, you are waiving your Fourth Amendment protection against unreasonable search and seizure. They won't 'go easier' on you; anything they find, they will confiscate, and arrest you and put you in jail. Don't do their job for them."

"There is no circumstance I can imagine where you should ever consent to a search," agreed NORML's Stroup. "If you give permission, you waive your Fourth Amendment protections. They may say it'll go easier if you cooperate, but that's bullshit. Their only reason for being there is to see if you have contraband and arrest you and put you in jail if you do."

"Just say no to warrantless searches," echoed the ACLU's Wolf. "Officers won't tell you you have the right not to consent, but you do, and it is one that people have held dear since the founding of the Republic."

There are other highway hazards for the unwary festival-goer. Law enforcement can be creative in its unending war on drug users and sellers.

"Anybody driving to see his favorite band should also be aware of fake drug checkpoints," said Silverman. "Drug checkpoints are unconstitutional, but what some sheriffs will do close to festival sites is set up a big 'Drug Checkpoint Ahead' sign, and then watch who turns off the highway at the next ramp or who throws something out his car window. Then they pull them over for littering or failure to signal a lane change or something. If you see such a sign, keep driving -- it's a bluff designed to see who it scares."

"When you see a sign like that, proceed ahead within the speed limit, driving safely through the area," advised Wolf.

Wolf has problems with the harassment of festival-goers that run deeper than particular law enforcement tactics. "Profiling based on race is not okay, profiling based on gender is not okay, and profiling based on the type of concert you attend is not okay," he said. "It's unreasonable and unjustifiable for police to target a group of people because they are going to any particular type of concert."

"Simply having a Grateful Dead sticker or dreadlocks doesn't constitute reasonable suspicion of anything," agreed Silverman.

But in the real world, it can. Festival-goers and other highway travelers need to be aware of their rights, as well as the realities of life in the contemporary US, as they hit the highway this summer.

And one last thing once you actually make it to the festival. "There's a big myth out there that police officers must reveal if they're an undercover cop," said Silverman. "That's wrong, and it's stupid to believe that. Police officers can and do legally lie in doing their jobs. Believing that has probably led to thousands of people being arrested."

Senior Citizens Caught in the War on Drugs -- DrugSense FOCUS Alert #367

Below the Florida Times-Union Senior Columnist Tonya Weathersbee provides a disturbing analysis of an aspect of the failure of the War on Drugs. Please consider writing and sending a Letter to the Editor of the Florida Times Union expressing your reaction to this column. Thanks for your effort and support. It's not what others do it's what YOU do. ********************************************************************** Contact: Florida Times-Union http://www.jacksonville.com/aboutus/letters_to_editor.shtml Pubdate: Mon, 26 May 2008 Source: Florida Times-Union (FL) Copyright: 2008 The Florida Times-Union Author: Tonyaa Weathersbee, The Times-Union SOME ARE DRIVEN TO CRIME BY ECONOMIC DESPERATION Ruth Davis says she isn't on drugs. But she was desperate. She's also a cautionary tale. According to a recent McClatchy News Service story, the Miami grandmother is sitting in a North Carolina jail. She's been there since December. That was when a state trooper nabbed her as she was transporting 33 pounds of marijuana to New York. He stopped Davis for speeding, but then noticed a strong odor as she rolled down her car window. Her answers to the trooper's questions about her travel plans didn't jibe. So he asked if he could search her car. She agreed. But Davis didn't know he was going to call the dogs to help him look. Game over. Drug enforcement officials say that people like Davis, who is 65, are becoming part of a trend; that drug dealers are now recruiting elderly people to carry drugs because there's less of a chance that they will be stopped or profiled. There's also the chance that police will be disarmed by their sweetness and vulnerability. Davis, in fact, said that she had hoped to charm her way out of a speeding ticket. I almost wish that had worked for her. Because it wasn't greed that made Davis agree to become a drug mule. It was pain. It was the pain of not being able to pay the $20,000-plus that she owed doctors for treatment of a blood disease. It was the pain of seeing her daughter's face disfigured from a car crash, and not being able to help her pay the $3,000 needed for corrective plastic surgery. It was the pain that a person feels when hitting rock bottom with no safety net to catch her. It's a pain that has been exploited by drug dealers who recruit the desperate and the defeated. And just as the drug trade has become the dominant economy for many poor, inner-city communities, it's not surprising that as other safety nets begin to fray, more people will grab on to anything to stop their free fall. In Davis' case, that meant grabbing onto the promises of a drug dealer. Me, I'm not all that surprised that some elderly folks would be vulnerable to that kind of coercion. In some neighborhoods in which drug dealers are the closest thing to philanthropists that most people there will ever see, they help some old people pay bills. But while Davis wasn't exactly poor - she said she owns her own home and works as a diet consultant - her medical bills apparently still made it hard for her to make ends meet. And, in case we forget, soaring medical bills can plunge anyone into poverty. Or it can push them to make thoughtless choices. So when I see cases such as hers, I'm reminded of how the drug trade is fueled by different degrees of hopelessness. In the inner cities, you have kids who work as drug sellers and lookouts because few know the lure of legitimate work, because not much of that exists where they live. Then you have some people who sell drugs to supplement low-wage jobs. Unlike Davis, they aren't casualties of an emergency as much as they are casualties of an illicit economy that has usurped the legitimate economy. Then there's the hopelessness that turned Davis into a drug mule. Such hopelessness is the kind that overwhelms people who are being let down by what many have come to view as guarantees in American life; that if you pay your bills, obey the law, drink your milk and say your prayers, the system won't allow misfortunes like medical emergencies to make you destitute. Now I know that not every senior citizen who is faced with hardships is going to sell drugs. Yet, Davis' story still is a revealing one. Among other things, it illustrates, once again, the failure of the war on drugs. We fill our prisons and jails with nonviolent offenders like Davis - a woman who, ironically, became a felon to avoid becoming a deadbeat - as the kingpins go free. And even as people like Davis sit in jail, Americans continue to use drugs at about the same rate as they did when President Nixon declared a war on drugs in 1971. As long as that continues to happen, and as long as jobs continue to hemorrhage and medical costs continue to spiral, people will look for ways to survive. And the drug lords will be waiting. ********************************************************************** Additional suggestions for writing LTEs are at our Media Activism Center: http://www.mapinc.org/resource/#guides, or contact MAP's Media Activism Facilitator for tips on how to write LTEs that are printed. heath@mapinc.org ********************************************************************** PLEASE SEND US A COPY OF YOUR LETTER Please post a copy of your letter or report your action to the sent letter list (sentlte@mapinc.org) if you are subscribed, or by E-mailing a copy directly to heath@mapinc.org if you are not subscribed. Your letter will then be forwarded to the list so others can learn from your efforts. Subscribing to the Sent LTE list (sentlte@mapinc.org) will help you to review other sent LTEs and perhaps come up with new ideas or approaches as well as keeping others aware of your important writing efforts.
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United States

Canada: Supreme Court Nixes Random Use of Drug Dogs

In a ruling last Friday, the Canadian Supreme Court held that the use of drug-sniffing dogs in a random search of an Ontario school was unconstitutional. The decision should result in an end to random drug dog searches across the country -- except at borders and airports, where customs officials have free rein.

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drug dog
The court held that the use of a drug-sniffing dog without particularized suspicion violated Section 8 of the Canadian Charter of Rights and Freedoms, which governs what constitutes reasonable search and seizure.

The case began in 2002, when police visited St. Patrick's High School in Sarnia, in the southwestern part of the province. Police confined students to their classrooms, while taking their backpacks to an empty gym. The dog alerted on one backpack, and one youth who was identified only by his initials was subsequently charged with possession of marijuana and psychedelic mushrooms.

Police admitted they had no search warrant nor even a tip that drugs were present at the school. Instead, they said, they were responding to a long-standing open invitation from school officials.

The trial judge in the case granted a motion to exclude the seized drugs as evidence and acquitted the youth. Prosecutors appealed, but the Ontario Court of Appeal in 2004 upheld the trial judge, saying the sniffing of backpacks by the drug dog amounted to "a warrantless, random search with the entire student body held in detention."

Crown lawyers argued unsuccessfully that being sniffed by a drug dog does not constitute a search. Odors in the public air are not private, and a drug dog detecting contraband by smell should be viewed as similar to police officers detecting an odor in the air, they argued.

That argument would have flown in the United States, where the Supreme Court has okayed the use of drug dogs in random searches, saying a drug dog sniff did not amount to a search. But it didn't fly in the Canadian courts. Now, police will not be able to conduct random searches with drug dogs in public places, such as churches, schools, and shopping malls.

Don't Give Your Marijuana to the Police

This remarkable New York Times piece exposes New York City's out of control marijuana policy, which has produced 374,900 misdemeanor marijuana arrests since 1998, despite a decrim law that's been in effect for 30 years. This is a rare example of professional-quality drug war coverage from the mainstream media and should be read in its entirety, as it raises several interesting issues.

I found this passage, which describes one particular arrest, quite revealing:

"I came out of the building, and this unmarked car, no light, no indication it was police, was right on me," said the man, a Latino who asked that his name not be used because he was concerned about his job. "Right on my tail. An officer got out, he said, 'I saw you walking from that building, I know you bought weed, give me the weed.' He made it an option: 'Give me the weed now and I will give you a summons, or we can search your vehicle and can take you in.' "

He opened the console and handed them his marijuana — making it "open to public view."

"I was duped," he said. But the deception was legal, and his pot wasn’t.

The officers escorted him in handcuffs to the unmarked car.

Amazingly, police must actually trick citizens into displaying their marijuana in order to make an arrest, since the decrim law requires plain view discovery. NYPD officers have become quite adept at initiating this through the typical threats and coercion that have long been the hallmark of petty drug war police practices.

Fortunately, the most obvious and effective antidote to New York's overzealous marijuana policing is really pretty simple: don't give them your marijuana. Don't admit having marijuana. Don't give them consent to search you or your vehicle. Ask if you're free to go.

Ending this obscene spectacle, which violates the spirit of New York's marijuana laws and wastes precious law-enforcement resources, is vitally important. But until that happens, citizens can protect themselves by not idiotically turning over their illegal drugs to the police. Seriously, stop giving them your drugs.

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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 War Issues

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