Search and Seizure

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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.
Location: 
United States

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.

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.

Medical Marijuana: New Mexico Paraplegic Sues Over Seizure of Plants, Grow Equipment

One of New Mexico's first registered medical marijuana patients is suing Eddy County Sheriff's deputies for seizing his marijuana plants and grow equipment and turning them over to the DEA. Leonard French of Malaga received a license to grow and use marijuana for pain resulting from a spinal cord injury, but that didn't stop the Pecos Valley Drug Task Force, headed by Dave Edmundson of the Eddy County Sheriff's Department, from seizing his plants and equipment shortly after he began growing last summer.

http://stopthedrugwar.org/files/medmj-bag.jpg
California medical marijuana bags (courtesy Daniel Argo via Wikimedia)
Now, with the help of the ACLU of New Mexico, French has filed a lawsuit in state court seeking a declaratory judgment that the task force's actions violated the state's medical marijuana law, the Lynn and Erin Compassionate Use Act, as well as its asset forfeiture statute; an injunction to stop the task force from again raiding French and his garden; and compensatory damages for his stolen property.

"The New Mexico state legislature, in its wisdom, passed the Compassionate Use Act after carefully considering the benefits the drug provides for people who suffer from uncontrollable pain, and weighing those benefits against the way federal law considers cannabis," said Peter Simonson, ACLU executive director, in a press release announcing the lawsuit. "With their actions against Mr. French, Eddy County officials thwarted that humane, sensible law, probably for no other reason than that they believed federal law empowered them to do so."

When at least four Eddy County deputies acting as members of the Pecos Valley Drug Task Force showed up at French's home last September 4, he thought they were checking his compliance with the medical marijuana law, so he presented them with his license, and showed them his grow, which consisted of two small plants and three dead sprouts. They then turned the plants and the grow equipment over to the DEA, which does not recognize medical marijuana or the state laws that permit its use. French has not been charged with any offense under either state or federal law.

"With the Compassionate Use Act, New Mexico embarked on an innovative project to help people who suffer from painful conditions like Mr. French's," said Simonson. "The law cannot succeed if the threat of arrest by county and local law enforcement hangs over participants in the program. With this lawsuit, we hope to clear the way for the State to implement a sensible, conservative program to apply a drug that traditionally has been considered illicit for constructive purposes."

And maybe teach some recalcitrant cops a lesson about obeying the law.

Marijuana: Sight of Someone Smoking a Joint Not Grounds for Home Search, California Appeals Court Rules

The California Court of Appeals in San Francisco ruled last Friday that police cannot enter a home without a search warrant just because they see someone smoking marijuana inside. Police may enter a home to preserve evidence of a crime, the court held, but only if the crime is punishable by jail or prison. The ruling came in People v. Hua.

Under California law, possession of less than an ounce of marijuana has been decriminalized with a maximum $100 fine and no jail time. Because simple possession has been decriminalized, even if police see someone smoking a joint inside a house, they have not witnessed a jailable offense, hence the only way they may enter without a search warrant is if they seek and receive the permission of a resident.

The case came about in March 2005, when officers in Pacifica came to an apartment on a noise complaint, smelled marijuana as they approached, then looked through a window to see what appeared to be someone smoking pot in a group of people. Police then entered and searched the apartment over the objections of resident John Hua. They found two joints in the living room, 46 plants in a bedroom, and an illegal cane-sword on a bookshelf.

After a San Mateo County judge upheld the police search, Hua pleaded no contest to cultivating marijuana and possession of the sword and served a 60-day jail sentence. But he retained his right to appeal the search ruling.

On appeal, prosecutors offered a two-pronged argument: that they had reason to believe there was more than an ounce of marijuana in the apartment, and that Hua or others might be committing a felony by handing the joint back and forth. But the court wasn't buying; it said the first argument was "mere conjecture" and the second was a misinterpretation of the law, which prescribes the same fine for giving a joint to someone as it does for smoking it.

Prosecutors aren't happy. California Deputy Attorney General Ronald Niver said he would recommend appealing the ruling to the state Supreme Court. "It's difficult to accept the proposition that if you see marijuana in one room, you cannot draw the inference that there's marijuana in another room," he said. "It's like saying that if you see the streets are wet, you can't infer that it's raining."

Ironically, Niver's boss, California Attorney General Jerry Brown, was the governor who signed the decriminalization bill in 1978.

Feature: The Bible, a Black Bag, and a Drug Dog -- A Florida Drug War Story

[Editor's Note: This week's contribution to our occasional series on the day-to-day workings of the drug war brings together some all-too-common abuses of the spirit -- if not the letter -- of the law in the name of enforcing drug prohibition. People smile grimly and joke about the "drug war exception to the Fourth Amendment," a rhetorical nod to the corrosive impact prohibition has had on Americans' right to be safe and secure from unwarranted searches and seizures. Here we will see it in action. And like last week's tale of woe in South Dakota, this one also involves marijuana and driving.]

Harold Baranoff lives in idyllic Key West, Florida, where, during the recent real estate boom, he bought in, only to find himself in financial trouble with a pair of heavily mortgaged homes and plummeting real estate values. In a bid to dig himself out of that hole, Baranoff headed north out of the Keys in his RV, carrying high hopes and 190 pounds of pot.

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Harold Baranoff
Baranoff's north-bound journey was going smoothly as he drove through central Florida. As he passed through Lakeland County, Baranoff had the ill-fortune to run into a drug law enforcement effort disguised as a traffic enforcement exercise. As a US district court judge noted in a decision on a motion in the case, Lakeland County Sheriff's officers "were performing drug interdiction by stopping drivers for traffic infractions."

[Editor's Note: The US Supreme Court forbade law enforcement from setting up drug checkpoints in November 2000 in City of Indianapolis v. Edmond, arguing that the attendant searches could not constitutionally be conducted without probable cause. Although the court has allowed the use of checkpoints to try to catch drunk drivers, it drew a distinction between law enforcement activities conducted for public safety ends, i.e. DUI checkpoints, and those conducted for law enforcement purposes, i.e. drug checkpoints. In Baranoff's case, as is often the case across the land, police were using traffic (public safety) enforcement as a pretext for what they were actually interested in: catching people carrying drugs, as the court noted in the paragraph above.]

At precisely 9:19pm on May 15, Lakeland County Deputy Sheriff William Cranford pulled Baranoff over because he had a broken tail light. Sheriff Carson McCall arrived on the scene moments later. Cranford asked Baranoff's permission to search his vehicle, which Baranoff refused. Cranford then asked if Baranoff would stick around long enough for a drug dog to arrive to sniff his vehicle. Baranoff again refused. Having radioed in Baranoff's license and registration information, Cranford told Baranoff he could go. The incident was over at 9:30, according to radio dispatch records cited in the ruling on the motion.

Four minutes later and 3 1/2 miles down the road, Baranoff was pulled over again, this time by a Deputy Condy for "weaving in the road." Again, Sheriff McCall arrived on the scene moments later. McCall later testified that he did not tell Condy he had just stopped and checked Baranoff. Baranoff and his attorney believe the second stop was no coincidence, citing testimony in hearings about a mysterious dispatcher transmission about a "black bag" on the highway just moments before Condy pulled Baranoff over. No other references to the black bag -- where was it? did anyone check it out?--exist. Unfortunately, tapes of the actual dispatcher transmissions were unavailable; the sheriff said they had been destroyed in a freak lightning strike.

Here's where it gets even weirder and more disturbing. As the court put it: "When Condy walked up to the driver's side window to talk to the defendant, he smelled a strong smell of cleaning products emanating from defendant's vehicle and an open Bible laying inside the motor home. He also noticed a religious bumper sticker with language about angels on it. Deputy Condy testified that in his experience, religious symbols are often used to cover the person's illegal activities. When Deputy Condy was speaking to the defendant, Condy suspected the defendant was nervous. Consequently, Condy asked Sheriff McCall to summon the narcotics detection dog officer to the scene."

Here, Deputy Condy is trying to establish probable cause for either searching the vehicle or detaining Baranoff until the drug dog could arrive. While observations that a driver is "nervous" or that there are strange odors emanating from the vehicle would appear to be reasonable steps toward that end, the suggestion that the presence of a Bible is indicative of criminality appears simply bizarre.

Condy spent the 13 minutes between the call for the drug dog and its arrival writing Baranoff two traffic tickets, one for the broken tail light and one for weaving. When the drug dog arrived, it alerted on the vehicle, Condy discussed the hefty stash of weed, and Baranoff went to jail. Baranoff stayed in jail for nearly six months, denied bond after the DEA said he was a flight risk.

Baranoff only walked out of jail a few weeks ago, after entering a contingent plea of guilty to marijuana distribution charges. While he could face up to 30 years in federal prison, given his clean criminal history, the now advisory federal sentencing guidelines have him doing about 3 1/2. He will find out for sure when he is sentenced in February.

But Baranoff didn't accept the contingent guilty plea until after the federal district court judge ruled against him on his motion to suppress the evidence seized in the traffic stop and search. Baranoff and his attorney, Terry Silverman, argued that the second traffic stop was actually an unlawful continuation of his first encounter with the Lakeland County Sheriff's Department, and that Deputy Condy was well aware of the first stop. Condy pulled him over simply to continue the sheriff's thwarted drug investigation, Baranoff argued, and the evidence seized is thus tainted and should be dismissed.

Wrong. The federal district court judge agreed with the government that there were in fact two separate traffic stops, that they were legitimate, and that even if the second stop was a pretext, as it was "reasonable" as long as there was probable cause to investigate. Which brings us to the Bible and the religious bumper sticker. Once again, the judge swallowed the government's case, hook, line, and sinker. City Deputy Condy's training and experience as the department's head narcotics officer, the judge blandly accepted his assertion that the presence of the Bible indicated possible criminal activity. "The religious items in and on the van...created a set of circumstances giving him (the officer) 'reasonable suspicion that an additional crime was being committed,'" the judge wrote.

With his only defense thus demolished, Baranoff agreed to the "contingent" guilty plea, meaning that the plea is contingent on his losing his appeal of the motion to suppress. He hopes to remain free on bond pending a decision on his appeal. Otherwise, he will be going to prison in February, since his appeal could take up to a year.

"We're disappointed in the ruling," said Silverman. "We thought we had a good factual record and good testimony."

Silverman didn't want to say more for the record while the case is on appeal, and he undoubtedly wishes his client felt the same way. But Baranoff doesn't want to stay silent. He feels not only like his rights have been violated, but that the way there were violated is a threat not just to him but to the rest of us as well.

"If such religious displays can be considered 'indicators of illegal narcotic activity,' then anyone with a bumper sticker, bible, fish symbol, Saint Christopher medal, cross, Star of David, spiritual or religious T shirt, etc. would be suspect," he said. "This sets a dangerous precedent that should worry every American, believer or not."

Convicted criminal that he is, Baranoff now wears an electronic ankle bracelet and is allowed to leave home only to go to work. "My houses are in foreclosure, and I'm driving taxi five nights a week," he sighed. "I was just trying to deal with my overdue mortgages."

Baranoff may have made some bad choices, ranging from deciding to carry a large quantity of marijuana to not thoroughly inspecting his vehicle before using it for that purpose. But he also suffered from the illusion that law enforcement would fight fair; that police would not subvert Supreme Court rulings by dressing up drug-fighting as traffic enforcement, that they would not "get their man" by conducting a bogus second stop, and that they would not resort to such stretches as arguing that the presence of a Bible is an indicator of criminal activity. Welcome to the "drug war exception to the Fourth Amendment," Mr. Baranoff.

Law Enforcement: Illegal Search Kills Prosecution in Largest Heroin Bust in California History

Two Mexican brothers arrested in the largest heroin seizure in California history walked free this week after federal prosecutors in San Diego dropped the charges against them. Prosecutors had little choice because a federal judge ruled last month that police had violated the Fourth Amendment's ban on warrantless searches and threw out the evidence against them. Two others arrested in the case have already pleaded guilty and are awaiting sentencing.

At the time of the Valentine's Day bust, Immigration and Customs Enforcement (ICE) nearly dislocated their shoulders patting themselves on the back for uncovering what they described as a major heroin, methamphetamine, and marijuana trafficking operation. But their eagerness to search and make arrests eventually cost them the case.

It all started when ICE agents at the San Ysidro border crossing found a car with nearly 12 kilos of Mexican heroin hidden inside. The driver was allowed to continue to his destination in Anaheim under ICE surveillance. The driver met with another man, then drove to an Anaheim house and pulled into the garage. Without waiting for a search warrant, ICE agents entered and searched the house, arresting six people and seizing 121 pounds of heroin, 34 pounds of marijuana, and 3 pounds of methamphetamine, along with about $3,500 in cash.

Attorneys for the two Mexicans argued in court papers the men had been staying at the Anaheim home and had a "reasonable expectation to privacy" guaranteed by the Fourth Amendment. They also argued that there was no threat to officer safety or that the evidence would be destroyed if ICE waited to get a search warrant.

Federal prosecutors argued that agents had no time to obtain a search warrant and that the drugs and the driver who led agents to the house were at risk, but US District Court Judge James Selna wasn't buying it. He instead ruled for the defense, holding that the search was unconstitutional and that the evidence derived from that search -- the seized drugs -- could not be admitted in court.

"To me, the issue is a rule of law and it won," said attorney Joel Levine, who represented one of the brothers.

Search and Seizure: Arizona Supreme Court Limits Vehicle Searches

The Arizona Supreme Court ruled late last month that police cannot routinely search the vehicles of people they arrest. In a 3-2 decision in State v. Gant, the court held that the warrantless search of Rodney Gant's vehicle after he was arrested, handcuffed, and sitting in the back seat of a police car went beyond an allowable search incident to arrest and was "not justifiable."

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police searching accused drug traffickers' car
Gant, from Tucson, was convicted on drug charges after police waiting for him as part of a drug investigation arrested him on a warrant for driving on a suspended license when he drove up to a targeted address. Police knew he had the pre-existing warrant because they had checked up on him during an earlier encounter at the same address. When Gant drove up and got out of his car, police called him over and arrested and handcuffed him. They then searched the vehicle and found the drugs that led to his conviction. The court overturned the conviction, calling the search a violation of the Fourth Amendment.

The legal argument centered around whether the facts in this case were consistent with a search incident to arrest. US courts have recognized searches incident to arrest as one of the few areas where the Fourth Amendment requirement of probable cause or a search warrant not does apply, citing officer safety and the need to preserve evidence.

The Arizona Supreme Court held that the search of Gant's vehicle after he was already under arrest and handcuffed for a traffic warrant was not a search incident to arrest. "When the justifications [for a search incident to arrest] no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer, the warrantless search of the arrestee's car cannot be justified as necessary to protect the officers at the scene or prevent the destruction of evidence," wrote Justice Rebecca Berch for the majority.

Arizona law enforcement was not happy about the ruling, and some agencies suggested they would find ways to skirt it. Police departments across the state, working with the Arizona Association of Chiefs of Police and the Arizona Law Enforcement Legal Advisors' Association, filed briefs urging the court to uphold the conviction and hinting they would adopt different arrest procedures -- perhaps not handcuffing suspects until after a vehicle search -- to be able to continue the practice.

Justice Berch addressed that implied threat in her opinion. "We presume that police officers will exercise proper judgment in their contacts with arrestees and will not engage in conduct which creates unnecessary risks to their safety or public safety in order to circumvent the Fourth Amendment's warrant requirements," she wrote.

Lab looks at cloning drug-sniffing dogs

Location: 
Seoul
South Korea
Publication/Source: 
Reuters (UK)
URL: 
http://uk.reuters.com/article/topNews/idUKSEO27379820070710

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