Search and Seizure

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Good Supreme Court Ruling on Traffic Stops

The Supreme Court actually issued a good ruling on traffic stops today, and it was unanimous. In BRENDLIN v. CALIFORNIA, Bruce Brendlin, who was convicted of drug possession after a car in which he was a passenger was pulled over by a sheriff's deputy in Yuba County, California, appealed his conviction based on the fact that the traffic stop was later conceded by the state to be illegal. The state argued that because Brendlin was not the driver of the car, he was not the subject of the illegal stop, and so did not have the right to have the evidence suppressed because of the stop's illegality. In the unanimous opinion written by David Souter, the Court found:
Brendlin was seized because no reasonable person in his position when the car was stopped would have believed himself free to "terminate the encounter" between the police and himself. Bostick, supra, at 436. Any reasonable passenger would have understood the officers to be exercising control to the point that no one in the car was free to depart without police permission.
Sad that the California Supreme Court bought the argument, though. Read more about the case here.
Location: 
Washington, DC
United States

Law Enforcement: Almost No Drug Warrants in Atlanta Since Police Gunned Down Old Woman in Botched Drug Raid

Atlanta Police Department narcotics officers have not sought a single "no-knock" search warrant in the six months since 92-year-old Kathryn Johnston was killed in a botched drug raid. According to the Atlanta Journal-Constitution, which examined court records, the number of all drug search warrants also dropped dramatically, down from at least 125 in the six months preceding her death to 19 in the six months since then.

In the Johnston case, two of the officers involved have admitted lying to a judge in order to obtain a search warrant for her home. Since then, Police Chief Richard Pennington has reassigned the entire narcotics squad, and a federal grand jury is conducting a wide-ranging investigation into whether and how often police lied to obtain search warrants.

"No-knock" warrants, where police break down the doors of suspects without warning, are issued by judges when police claim they fear the destruction of evidence or that officer safety could be compromised by knocking on the door. Critics charge the use of "no-knock" warrants leads to the use of excessive force and increases the possibility of armed confrontations between homeowners and invading police.

Chief Pennington said the drop-off in warrants is a temporary lull. "Once the new narcotics team is put on the street, we are going to go right back into these areas that have a large concentration of drug activity," he said. "We are going to work with the community. But we are going to make sure they do everything by the book."

Pennington announced strict new procedures for obtaining search warrants two months ago. He said he told police officers to seek warrants in only the biggest cases until the new narc squad was trained and on the street.

Atlanta defense attorneys hailed the decline in warrant applications, saying it demonstrated that police were cutting corners before the Johnston killing. "Now that they are being watched more closely and have to follow the law, they don't get many warrants," said Peter Ross, who represents drug defendants. "In the past, they basically had the ability to fabricate the information and get a warrant for it."

Latest Entry in the Annals of Excess Department

This is not directly drug war related, but this is such an asinine abuse of both police and prosecutorial power that I thought I needed to share it. Alright, here's the tale in a nutshell: Kid riding in pick-up that gets pulled over, kid videotapes cop during encounter (just as cop-car camera videotapes the pick-up), cops seizes camera, arrests kid, cop consults with prosecutor, then charges kid with felony wiretapping, punishable by up to seven years in prison. To stupidly repressive to be true? Here it is: Video Recording Leads to Felony Charge:
Brian D. Kelly didn't think he was doing anything illegal when he used his videocamera to record a Carlisle police officer during a traffic stop. Making movies is one of his hobbies, he said, and the stop was just another interesting event to film. Now he's worried about going to prison or being burdened with a criminal record. Kelly, 18, of Carlisle, was arrested on a felony wiretapping charge, with a penalty of up to 7 years in state prison. His camera and film were seized by police during the May 24 stop, he said, and he spent 26 hours in Cumberland County Prison until his mother posted her house as security for his $2,500 bail. Kelly is charged under a state law that bars the intentional interception or recording of anyone's oral conversation without their consent. The criminal case relates to the sound, not the pictures, that his camera picked up.
Yes, that's right. Apparently, operating a video camera is a crime in Pennsylvania. Who knew? I'm not aware of mass busts of video camera operators at weddings, in parks, at concerts, at family reunions, or any of the thousand and one other places they are commonly used. I haven't seen the Pennsyvlania cops rounding up media camera operators, either, come to think of it. Oh, and the police have an exemption. They can videotape you, but you can't videotape them. Funny how that works.
Location: 
United States

Police deliberately crash truck into car, and then steal car -- in order to search it.

Drug WarRant discusses this incident that even I almost find unbelievable... Okay, they use the word "tap," and not unfairly. But my use of the word "crash" has as much or more connection to reality than the word "conspiracy" has had in many drug cases that have put minor drug offenders in prison for decades. And even bumper taps have a small but non-zero chance of causing medical complications including death. I think all the police officers involved in this should be permanently banned from working in law enforcement or even private security. They have absolutely no reasonable concept of what constitutes responsible behavior with respect to the lives of other people. Or they had an incredibly poor judgment lapse, same difference.
Location: 
La Pine, OR
United States

Case is a lesson in search warrants, Pair's marijuana charges dropped

Location: 
CO
United States
Publication/Source: 
The Fort Collins Coloradoan (CO)
URL: 
http://www.coloradoan.com/apps/pbcs.dll/article?AID=/20070611/NEWS01/706110325/1002

Racial Profiling: It's Getting Worse in Missouri

Black drivers are nearly 50% more likely than whites to be stopped by Missouri police and twice as likely to be searched, even though police are less likely to find contraband than with white drivers, according to the state's annual report on racial profiling. Released May 31, the report also found that the problem is getting worse.

http://stopthedrugwar.org/files/njturnpike.jpg
enter at peril of profiling
The report showed that blacks were pulled over at rates 49% greater than their presence in the driving age population. The numbers were 34% in 2004 and 42% in 2005.

"As I have said in previous years, the disparity index for African-American and Hispanic drivers continues to be of concern," Attorney General Jay Nixon said in his written analysis of the report. "Law-abiding drivers have the right to travel throughout Missouri without the fear that they will be stopped based solely on their race or ethnicity."

White drivers were stopped at a rate slightly below their percentage of the population, while Hispanic drivers were stopped at a right slightly above it. Asians, American Indians, and people of mixed race were all stopped at rates well below what would be expected.

Blacks and Hispanics were twice as likely to be searched as whites, even though police were most likely to find contraband in searches of vehicles driven by white drivers. Police found contraband in 14.4% of searches of Hispanic drivers, 18.7% of black drivers, and 22.2% of white drivers.

Despite lower levels of successful searches among black and Hispanic drivers, they were still twice as likely to be arrested during a traffic stop than white drivers. Five percent of white drivers pulled over ended up going to jail, while slightly more than 10% of black and Hispanic drivers did.

The report was based on an analysis of more than 1.6 million traffic stops, 128,000 searches, and 94,000 arrests made by state and local police in Missouri in 2006.

Search and Seizure: California Federal Court Throws Out Warrantless Cell Phone Searches

A federal district court judge in Northern California ruled May 23 that police need a search warrant to peruse the contents of cell phones seized from people being arrested. While police may typically search people at the time of arrest and at booking, the judge held that searching a cell phone requires a search warrant.

The case arose from a December 2004 medical marijuana dispensary raid by the San Francisco Police Department in which five people were arrested. Three of them--Edward Park, Brian Ly and David Lee -- were taken to a local police station, where SFPD Police Inspector David Martinovich admitted searching one man's phone and ordering another police inspector to search the other two men's phones.

"I believed that a search of the cellular telephones at the police station during the booking process was permissible as a booking search," Martinovich said in court documents. He admitted perusing the cell phone and writing down the contents of its address book.

The three men filed a motion to suppress the evidence, saying the warrantless cell phone search violated the Fourth Amendment. US District Judge Susan Illston agreed.

"This court finds... that for purposes of Fourth Amendment analysis, cellular phones should be considered 'possessions within an arrestee's immediate control' and not part of 'the person,'" wrote Illston in her opinion. "This is so because modern cellular phones have the capacity for storing immense amounts of private information."

Illston expressed concern at violations of people's right to privacy. "Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, e-mail, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through e-mail and text, voice and instant messages," she noted.

"Any contrary holding could have far-ranging consequences," Illston continued. "At the hearing, the government asserted that, although the officers here limited their searches to the phones' address books, the officers could have searched any information -- such as e-mails or messages -- stored in the cell phones."

The government failed to show any purpose other than furthering criminal investigations, Illston concluded. "The court finds that the government has not met its burden to show, by a preponderance of the evidence, that it is standard police practice to search the contents of a cellular phone as part of the booking process," she wrote. "Indeed, the government has not articulated any reason why it is necessary to search the contents of a cell phone in order to fulfill any of the legitimate governmental interests served by a booking search: namely, to deter theft of arrestees' property and false claims of theft by arrestees, and to identify contraband and other items."

As Illston noted in her opinion, there is no controlling opinion on these issues in either the 9th US Court of Appeals or the US Supreme Court. In one similar federal case, the presiding judge found for the government. These issues are likely to be further adjudicated in the federal appeals courts.

Search and Seizure: Minnesota Supreme Court Okays Drug Dog Sniff Outside Apartment Door

The Minnesota Supreme Court ruled May 24 that police need only articulable suspicion -- not the higher standard of probable cause -- to be able to use a drug sniffing dog to sniff the outside door of a person's residence. The 5-2 decision sparked a bitter dissent.

https://stopthedrugwar.org/files/drugdog.jpg
drug dog
The ruling came in Minnesota v. Davis, in which Burnsville police were informed by maintenance workers in an apartment complex that they thought they saw marijuana grow lights and that Evans would not let them in the apartment to fix a water leak. Based on that information, police brought a drug dog to the location, and the dog reacted outside the apartment door. Police then used the maintenance workers' information, the drug dog alert, and Davis's past criminal record to obtain a search warrant, which resulted in the finding of various items of contraband and three drug charges against Davis.

At trial, Davis moved to suppress the evidence, arguing that police needed probable cause to sic a drug dog on his apartment door because the drug dog sniff of his door exterior actually amounted to a "search" of his apartment, thus requiring probable cause. He lost at the trial court, which concluded that police needed only articulable suspicion and had met that standard. The Minnesota Court of Appeals affirmed that decision, and now the state Supreme Court has reaffirmed it.

While the state constitution requires the courts to balance individuals' privacy interest against the public interest in effective law enforcement, the state Supreme Court held that the intrusion into Davis's privacy was so minimal as to not require the higher standard of probable cause. The only intrusion into Davis's privacy occurred because the dog could sniff what the public could not. "This intrusion, however, is minimal," Justice Gildea wrote for the majority.

"When we balance the minimal intrusion on [the defendant's] privacy interests inside his residence against the governmental interest in the use of narcotics-detection dogs as an investigative tool to combat drug crime, we conclude that the police needed a reasonable, articulable suspicion to walk a narcotics-detection dog down the common hallway outside [the defendant's] apartment," Gildea wrote. The report from maintenance workers rose to the level of articulable suspicion, the opinion added.

Justice Alan Page, joined by Justice Helen Meyer, strongly dissented from the majority's opinion. "This case marks a significant departure from our constitutional jurisprudence because it is the first time the court has authorized the search of a private residence based on anything less than probable cause in the absence of exigent circumstances," Page wrote. "It is a departure that takes us down a road that erodes Fourth Amendment protections in one's home. That is a road I am unwilling to go down." Unfortunately, Page was in the minority.

Big Island rejects federal funds for war on pot

Location: 
HI
United States
Publication/Source: 
Honolulu Star-Bulletin
URL: 
http://starbulletin.com/2007/05/18/news/story02.html

Drug war has come under fire

Location: 
Apatzingan
Mexico
Publication/Source: 
Chicago Tribune
URL: 
http://www.chicagotribune.com/news/nationworld/chi-0705170834may18,1,3948220.story?coll=chi-newsnationworld-hed

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