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Two More Drug Raids, Two More Deaths

Two drug raids last Wednesday, one in Miami Lakes, Florida, and one in New Orleans, have resulted in the deaths of two men, one in each raid. Michael Ray Santana, 26, of Miami Lakes and Wendell Allen, 20, of New Orleans become the 14th and 15th persons to die in US domestic drug law enforcement operations so far this year.

In Miami Lakes, according to police, Santana was shot and killed after he confronted members of the Miami-Dade police Special Response Team, a SWAT-style outfit, serving a "high risk narcotics search warrant" at his residence. Police said officers knocked, announced themselves, and then went inside, when they were confronted by a man armed with a firearm.

Santana was the subject of the police investigation, and police said they found numerous firearms and a substantial amount of unspecified "narcotics" in the residence.

In New Orleans, according to police, Allen was shot in the chest and killed by a police officer serving a search warrant at a home where he was present. Officers from both the New Orleans Police Department and Jefferson Parish Sheriff's Department took part in the raid, but the identity of the officer who fired the fatal shot has not been made public.

Police made no mention of any weapons found.

New Orleans Police Superintedant Ronal Serpas said the house in the Gentilly district had been under surveillance for several days.

"Today, multiple narcotics transactions of a distribution nature were observed," he said, adding that a person who left the house was later charged arrested for intent to distribute "narcotics."

Serpa did not identify either the shooter or the dead man, and he didn't take questions during a brief press conference.

But a distraught woman at the scene of the shooting told the New Orleans Times-Picayune he was her grandson, Wendell Allen.

Allen's shooting was the second fatal police shooting in the NOPD's 3rd District in less than a week.

As people milled around the scene of the shooting, one woman screamed, "Lord have mercy! Why does this stuff keep happening?" Another shouted, "The policeman killed him. They killed my baby."

Allen had one arrest on his record, for possession of marijuana with intent to distribute. He was one year into a five-year suspended sentence when he was shot and killed.

In the days since Allen's death last week, a growing clamor has arisen.The Louisiana Justice Institute is threatening to sue the city unless it releases more information on the killing. Police have yet to supply a narrative of what happened, and the officer who pulled the trigger has yet to be interviewed. Family members and community activists demonstrated last Friday and again on Tuesday to keep up the pressure.

What is clear is that the raid was aimed at small-time marijuana dealing, and Allen wasn't the subject of the raid.

 

After Supreme Court Win, Antoine Jones Still Seeks Justice [FEATURE]

by Clarence Walker and Phillip Smith

So, a guy gets convicted in a cocaine conspiracy case and sent to prison for life without parole, but wins on appeal and then wins again in a landmark US Supreme Court ruling on search and seizure law that overturns his conviction and forces dramatic changes in the way federal law enforcers go about their work. You would think this guy would be a pretty happy camper, getting back to his life and enjoying his freedom after sticking a thumb in the federal government's eye. But you would be dead wrong.

Antoine Jones (photo by Clarence Walker)
Meet Antoine Jones, the Jones in US v. Jones, last month's Supreme Court case in which the high court held that tracking a vehicle's movements by placing a GPS tracking device on it without first obtaining a search warrant is constitutionally impermissible. That ruling set off an earthquake under the Justice Department, evidenced this week with reports that the FBI has turned off some 3,000 GPS tracking devices that were in use.

FBI General Counsel Andrew Weissman told a University of San Francisco conference appropriately titled "Big Brother in the 21st Century" that the FBI had had problems locating some of the turned off devices and had sought court orders to get permission to briefly turn them on again, so agents can locate and retrieve them. The Supreme Court decision had caused "a sea change" at Justice, he said.

The Jones case may have been a victory for civil liberties and constitutional rights advocates, but Antoine Jones is still sitting in prison. Determined to nail the former Washington, DC, nightclub owner, federal prosecutors have announced they will seek to retry Jones without the evidence garnered by the GPS tracking device, and they want him securely behind bars until they get around to doing so.

The decision to not free Jones even though his conviction has been vacated and his case sent back to the trial court is of a piece with prosecutors' earlier tactics. After Jones won his case on appeal, prosecutors argued successfully then against granting him bail as they awaited a Supreme Court decision.

They think they have a big time dope dealer. Back in 2005, when the case began, Jones was targeted by the FBI and other federal and state police agencies as a major player in a multi-million dollar cocaine ring with ties to a Mexico-based organized crime group. Investigators said Jones and his co-conspirators distributed cocaine throughout the DC metro area. They eventually won a conviction against him, although it took them two separate prosecutions to do so. It was that conviction that was reversed by the Supreme Court.

Veteran Houston-based crime beat reporter Clarence Walker has been in communication with Jones via mail and the occasional phone call for the past several years. He's also been talking to Jones' appellate attorney, Stephan Leckar, who is exploring a possible plea bargain, although Jones doesn't appear interested in anything less than complete exoneration.

While Jones is pleased with the Supreme Court decision, he's not so pleased with the fact he is still being denied his freedom.

"All I can say I am very happy with the Supreme Court decision and I hope the decision helps millions of Americans preserve their right to have reasonable expectation of privacy," Jones told Walker in a phone interview this month. "The ruling came right on time because who knows how many American citizens the government continues to track and monitor for weeks and months without a warrant. Even some of the men here in prison with me have warrantless GPS issues, like a friend of mines named Sigmund James. The government tracked his vehicle for 14 months."

James was convicted in a massive cocaine trafficking case in Orangeburg, South Carolina, an operation called "Bitter Orange." Like Jones, James was sentenced to life without parole.

Jones said he expected to be released after the Supreme Court decision and that he was "shocked" when Leckar told him prosecutors were seeking to retry him or get him to accept a plea bargain.

"Matter of fact, I thought once the mandate was released, I would be freed from prison right away," Jones said, "but Mr. Leckar said the government will never let me go unless I beat them at trial."

"The government is permitted to retry the conspiracy charge, provided they don't use the GPS evidence," Leckar told Walker. "But there are a number of other serious legal issues that must be resolved including whether drugs and cash said to be from a stash house could be admitted," he explained. "But like I told Antoine, the feds have no intention of letting him go and that they will probably retry him on the evidence that was not obtained by the GPS tracker."

Jones got a sentence of life without parole the first time around, Leckar noted, and if he loses a second time, he could face the same sentence. But Jones is not ready to compromise. Instead he is going to fight, both in the criminal courts and the civil courts.

Jones filed a pro se civil suit against numerous law enforcement agencies alleging numerous abuses, but that jailhouse lawsuit was dismissed by the US District Court for Washington, DC, in 2009. Now, however, Jones is refiling, and he has professional legal assistance this time. He is being represented in the civil suit by the DC law firm of Miller & Chevalier.

"The federal authorities know they not only violated my civil rights, and my wife's and son's rights, but they lied on the witness stand, and they burglarized my home and warehouse," Jones charged. "And so now that I have attorneys representing me in the civil suit against the government, they want to wrongfully convict me again to cover up their lies and the crimes they committed during the investigation of my case. The feds know what they have done was wrong."

Jones is not only on the offensive with the civil suits. He has also filed obstruction of justice complaints with the Justice Department's Office of Professional Responsibility and the Office of the Inspector General. He is alleging that FBI and ICE agents committed various illegal acts in attempting to nail him, including falsifying federal reports, conducting searches without a search warrant, planting evidence, forging signatures on search consent forms, and perjury.

GPS satellite
"Since Mr. Leckar said the government will never let me go unless I beat them in trial. I will focus on my civil rights complaints against the Feds and make sure my wife, son and mother-in-law pursue their civil right suit as well," Jones explained. "The civil suits and obstruction of justice complaints could get the federal agents and the police prison time if they are indicted and found guilty."

Purvis Cartwright, a former federal prisoner and highly respected Houston, Texas-based writ writer who has been closely monitoring the GPS case, told Walker that Jones may have made a mistake by suing the federal government because now prosecutors will come back at him very hard to convict him by using "snitchers" to testify against Jones, snitchers that Jones never met.

Cartwright called that strategy a "get on board" scheme, a way for informants to get their sentences reduced by helping prosecutors. "A rat don't have friends," he said, "only victims."

So far, one high-profile snitch has already gotten on board to help convict him in his upcoming retrial, Jones said. He said Leckar told him the government is planning to call a high-level Mexican drug dealer to say he shipped large loads of cocaine to him.

"I've never met nor talked with the guy in my whole life and he never testified in either of my trials," Jones said.

"The feds, like the DEA and FBI, have snitchers in the joint," Cartwright explained. "They will go to these guys and tell them they are trying to get something on a particular guy and then the feds will share with the snitchers some important background information about the target and next thing you know they ready to testify in court against someone they don't even know," he said. "This is rampant in the federal joint."

"The government still thinks they have a case, but they must have forgot what the Court of Appeals stated in their opinion," Jones said, before quoting word for word: "The evidence linking Jones to a conspiracy was not strong, let alone overwhelming, and the government did not have a drug transaction in which Jones was involved, nor any evidence that Jones possessed any drugs."

Prosecutors are reportedly offering a plea deal that would result in a 12-year federal prison sentence for Jones, but he isn't going to take it despite the possibility he could once again doing life without parole. He maintains his innocence, he said.

"I'll fight this case until the end."

Clarence Walker can be reached a cwalkerinvestigate@gmail.com.

Washington, DC
United States

Another Dumb Drug War Idea: Banning Hidden Compartments in Cars

http://www.stopthedrugwar.org/files/carsearch.jpg

Frequent visitors to this site should know by now that there is no idea so absurd, no strategy so stupid, as to be rendered ineligible for introduction into the War on Drugs. There is nothing these people won't try, and by nothing I mean that literally, as in every bad idea that the human mind can possibly produce will eventually be attempted by amped-up narc-mongering nutjobs hellbent on bending our legal system to hell.

The latest news in this ongoing crusade to arrest everyone for everything is Ohio's preposterous plan to start busting and jailing people for having hidden compartments in their cars:

A hidden compartment in your vehicle, with or without drugs, could mean big trouble as Ohio officials get serious about slowing down drug-smuggling.

A proposed state law, advocated by Gov. John Kasich, would make it a fourth-degree felony to own a vehicle equipped with secret compartments. A conviction would mean up to 18 months in jail and a potential $5,000 fine. [Columbus Dispatch]

Right out of the gate, I've got three good reasons why this is insane:

1. It's already illegal to have drugs. Is Ohio having a hard figuring out what to charge people with when they find a kilo of coke in a car? I have an idea: coke. That ought to get the job done. You can make all the laws you want about where people can and cannot store enormous amount of highly-illegal contraband, they're still not gonna keep it in a turkey bag and balance it on their head. Anyway, since when does the highway patrol hate ripping cars apart?

2. How am I supposed to know if I have a hidden compartment in my car? It's hidden. There's a multi-billion dollar industry of people smuggling this and that from here to there, and those cars get resold like crazy. Heck, the number one reseller of shady smuggler cars is the cops. Any used car on the road could have a stash spot in there somewhere, and excuse me for not preemptively cutting every inch of my crappy car open with a metal saw to make sure. You're gonna put me in jail for possession of empty space that I failed to notice?

3. I should be allowed to hide random crap in my car. Right? It should go without saying that I have every right to hide my stuff in my car any way I want. Maybe I'm hiding candy from my kids or porno from my wife, or whatever from whoever else. It's my damn car. Why is the government telling me I can't have a compartment full of candy and porno in my car if my lifestyle calls for that? The fact that some other dude keeps a kilo of coke in his compartment has nothing whatsoever to do with me. Leave me the hell alone.

It remains to be seen whether any of this will occur to anyone before this stupid new idea becomes a stupid new law. But you can bet that the people smuggling drugs through Ohio really couldn't care any less what the law says about where you aren't allowed to store the marijuana, meth, cocaine, and heroin that you aren’t allowed to have in the first place.

Video: 5 Reasons You Should Never Agree to a Police Search

Steve Silverman and I recently started a new YouTube show called How to Deal with Cops. This is my first episode, which goes over the major points from my Huffington Post piece last week.

Future episodes will probably follow more of a Q&A format, i.e. I'll be responding to questions people posted in response to previous episodes. Unfortunately, the leading question so far seems to be "How high are you in this video?" and the answer is not at all. People who don't know me always think I look high on camera. Guess it goes with the territory.

Anyway, there are plenty of more important issues to discuss than whether or not I'm super high, so I look forward to making more videos and helping people handle police encounters.

Police Need Warrant for GPS Tracking, Supreme Court Rules

The US Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the decision was narrow, leaving unanswered lingering questions about citizens' expectations of privacy in an age of rapid technological advance.

The ruling came in US v. Jones, in which Washington, DC, nightclub owner Antoine Jones was convicted of drug trafficking offenses based in part on evidence developed after police placed a GPS device on his vehicle and monitored his movements for 28 days. (See the Chronicle's earlier coverage of the Antoine Jones case here.) Police had sought a warrant to place a GPS tracking device, but that warrant expired before the device was actually placed on Jones' vehicle.

Writing the majority opinion, Justice Antonin Scalia said police needed a search warrant before attaching a GPS device to a suspect's vehicle. He was joined in the opinion by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor.

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" under the Fourth Amendment's protection against unreasonable searches and seizures, Scalia wrote.

But the court split on whether the decision went far enough. Scalia wrote that if the government had been able to use electronic surveillance to spy on Jones without physically trespassing on his property, that may have been "an unconstitutional invasion of privacy." But, Scalia added, "The present case does not require us to answer that question."

That wasn't good enough for Justice Samuel Alito Jr., who, in a concurring opinion, said the court should have tackled the larger question instead of using "18th century tort law" to decide a case about "21st century surveillance techniques."

"The court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)," Alito wrote.

It was the long-term surveillance itself, not the fact that police physically placed a tracking device on Jones' vehicle, that violated the Fourth Amendment's proscription against warrantless searches and seizures, Alito argued.

"The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy," he wrote. "For such offenses, society's expectation has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalog every single movement of an individual's car for a very long period."

Although Justice Sotomayor joined the majority opinion, she also seemed disappointed that the court had not ruled more broadly. She wrote that the court had in effect ducked the big question of whether warrantless electronic surveillance was constitutional and warned that Monday's decision will do little to answer that question.

"With increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smart phones," Sotomayor wrote. "In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance."

Still, this is a win for the Fourth Amendment and for individual privacy rights, even if it is limited.

Washington, DC
United States

Supreme Court Will Hear Florida Drug Dog Case

The US Supreme Court said last Friday it would decide whether having a drug dog sniff at the door of a private residence violates the Fourth Amendment's proscription against warrantless searches. The court agreed to hear an appeal from the state of Florida in a case where the Florida Supreme Court ruled that such searches were indeed unconstitutional.

The case is Florida v. Jardines, which began with the arrest and conviction of Joelis Jardines for marijuana trafficking and electricity theft after a Florida police officer's drug dog sniffed at Jardines' front door and alerted to the odor of marijuana, Jardines and his attorney challenged the search, claiming the dog sniff was an unconstitutional intrusion into his home.

The trial judge agreed, throwing out the evidence, but an appeals court reversed the lower court decision. In April, in a split decision, the state Supreme Court reversed the appeals court, siding with the trial judge.

What the high court decides will be watched with great interest by law enforcement, which sees drug-sniffing dogs as an invaluable tool in its fight to suppress drug use and the drug trade. Eighteen states had joined with Florida in urging the court to take up the case. They argued that the state court decision went against legal precedent and threatened a valuable and widely-used tactic.

This will be only the latest legal tussle over whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure. In previous cases, the Supreme Court has upheld the use of drug-sniffing dogs during traffic stops, at airport luggage inspections, and for shipped packages in transit.

This case is different because it involves a private residence. The Supreme Court has repeatedly emphasized that a residence is entitled to greater privacy than cars on a highway, luggage at an airport, or a package in transit. The court used that reasoning in a 2001 case involving the use of thermal imaging to detect heat from a marijuana grow operation in a home, ruling that the scan constituted a search requiring either a search warrant or probable cause.

The Supreme Court is expected to hear oral arguments in April and render a decision by the end of June.

Washington, DC
United States

Supreme Court Asked to Take Drug Dog Case

The state of Florida is asking the US Supreme Court to reverse a ruling by the Florida Supreme Court that having a drug dog sniff the front door of a residence is a violation of the Fourth Amendment's proscription against unreasonable searches. Court followers told the Associated Press the high court is likely to take up the case.

drug dog (wikimedia.org)
In Florida v. Jardines, a case that originated with the arrest and conviction of Joelis Jardines for marijuana trafficking and electricity theft after a Florida police officer's drug dog sniffed at Jardines' front door and alerted to the odor of marijuana, the state Supreme Court held that the drug dog sniff was indeed a search under the Fourth Amendment and thus required either probable cause or reasonable suspicion if conducted without a search warrant.

The justices could decide this month whether to take the case, the latest dispute about whether the use of dogs to find drugs, explosives and other illegal or dangerous substances violates the Fourth Amendment protection against illegal search and seizure. In previous cases, the Supreme Court has upheld the use of drug-sniffing dogs during traffic stops, at airport luggage inspections, and for shipped packages in transit.

This case is different because it involves a private residence. The Supreme Court has repeatedly emphasized that a residence is entitled to greater privacy than cars on a highway, luggage at an airport, or a package in transit. The court used that reasoning in a 2001 case involving the use of thermal imaging to detect heat from a marijuana grow operation in a home, ruling that the scan constituted a search requiring either a search warrant or probable cause.

"We have said that the Fourth Amendment draws a firm line at the entrance to the house," the court held in that case, Kyllo v. United States. The opinion noted that thermal imaging could detect such private matters as "at what hour each night the lady of the house takes her daily sauna and bath."

Jardines and his attorney challenged the search, claiming the dog sniff was an unconstitutional intrusion into his home. The trial judge agreed, throwing out the evidence, but an appeals court reversed the lower court decision. In April, in a split decision, the state Supreme Court reversed the appeals court, siding with the trial judge.

Now, attorneys for Florida are seeking US Supreme Court review. They argue that the state Supreme Court decision conflicts with previous rulings that a drug dog sniff is not a search.

"A dog sniff of a house reveals only that the house contains drugs, not any other private information about the house or the persons in it," wrote Carolyn Snurkowski, Florida associate deputy attorney general. "A person has no reasonable expectation of privacy in illegal drugs."

Tallahassee, FL
United States

Live Webchat About Dealing with Police

Steve Silverman and I will be joining the popular political site FireDogLake this evening for a webchat about our film 10 Rules for Dealing with Police. Please join us from 8:00-9:30ET for what I'm sure will be a lively discussion. Just click into FireDogLake.com at 8:00 and register here if you'd like to comment or ask questions. Hope to see you there.

NYPD Only Arrests Minorities for Marijuana. Here's How They Do It.

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Since 1977, it's been technically legal in the State of New York to carry around a concealed bag of marijuana weighing less than 7/8 of an ounce. But you could be forgiven for not knowing this, since getting popped for petty pot possession is easier in New York City than anywhere else on the planet.

It's a monumental injustice that owes its costly continuation to one simple tactic: tricking people into committing the crime of displaying their marijuana in plain sight:

What's happening is that disproportionate numbers of black and brown young men, ages 16 to 29, are being duped into publicly revealing their allowable marijuana and then being arrested, thereby gaining a criminal record, advocates say. Police officers will say, "Empty your pockets!" turning a routine stop into an arrest and a police record.

"In 2010 in New York State, there were 54,000 marijuana arrests ... 50,000 of them came from New York City, and -- surprise, surprise -- from neighborhoods that primarily are black, Latino and low income," says Kyung Ji Kate Rhee, executive director of the IJJRA. "It's not like these individuals had a felony charge and marijuana happened to be an additional charge ... You're telling me that 50,000 had marijuana in plain view? Does that sound right to you? After that initial point of police contact, they trick you into turning out your pockets."

The NYPD did not respond to requests for comment. (The Root)

Now this is where I get confused, because if arresting young black and Latino men for tiny little bags of marijuana were as important to me as it is to the New York Police Dept., I would be extremely pleased with these results and eager to take credit for them. It makes little sense to provide your officers with special training in how to make trivial arrests for petty crimes under legally-dubious circumstances if you aren't going to be proud of the outcome.

Why not instead spend the $75 million that all of this costs on something that you're at least willing to admit you've been doing? Surely they can think of something to do with those resources that will make sense to the public, something -- anything! -- other than a massive, utterly pointless exercise in transparent racism that plainly violates the spirit of the laws of the State of New York.

Please click here to send a message to Mayor Bloomberg that New York City's senseless war on marijuana must be ended once and for all.

ACLU Sues Florida Governor on State Employee Drug Tests [FEATURE]

The ACLU of Florida Tuesday filed suit in federal court in Miami to block Gov. Rick Scott's (R) executive order mandating random, suspicionless drug testing of state employees. The lawsuit contends the drug testing amounts to an unlawful and unreasonable search and seizure, violating state employees' Fourth Amendment rights, and seeks an immediate halt to the practice.

Florida state workers, be prepared to submit one of these if Gov. Scott has his way. (Image via Wikimedia.org)
"We are taking this action to prevent Gov. Scott from trampling on your rights in Florida," said ACLU of Florida head Howard Simon during a Wednesday afternoon press call. "We don't have a system of government run only by the executive and the legislative branch. It's time for the courts to step up and defend the rights of Floridians. This is an abuse of government power."

The lawsuit was brought on behalf of the American Federation of State, County, and Municipal Employees (AFSCME) Council 79, which represents 50,000 state employees and an additional 200,000 county and municipal employees in Florida. Also joining the lawsuit is Florida Fish and Wildlife Conservation Commission research scientist Richard Flamm.

"AFSCME has for decades supported drug-free workplace policies while preserving the fundamental right of public servants to be free of extreme governmental intrusions," said Alma Gonzales, general counsel for AFSCME Council 79. "We negotiated objective standards for drug testing for reasonable suspicion or if there is a safety risk, but at no point has the governor's office ever contacted us to negotiate over this. We're talking about taking their bodily fluids without probable cause or consent," she pointed out. "It's surprising and disappointing that the chief executive of Florida is unaware or doesn't care that this is the law of the land."

"I've been a state employee for almost 18 years," said Flamm. "There is absolutely no suspicion based on my behavior at work that I am a drug user. I joined as a plaintiff in this lawsuit because I find this extremely costly and wasteful. There is no threat to society. As a Florida taxpayer, I find it outrageous that given our current economic climate, with the loss of services and public jobs, that we would be wasting millions with unnecessary drug tests. As a citizen of the United States, I find this executive order an egregious attack on the Constitution. I'm surprised more people haven't stepped up," the research scientist said.

Scott signed the executive order on March 22, and it called for state agencies to have devised drug testing regimes by May 21, but it is unclear whether any state employees have been subjected to drug testing at this point.

The US Supreme Court has held that suspicionless drug testing by the government is an unreasonable search under the Fourth Amendment. The only exceptions allowed by the high court are "special circumstances," such as employees who work in jobs where there is "concrete danger of real harm."

"This executive order is profoundly un-American," said Simon. "This is a governor who masquerades as a conservative, but who is a radical. We had a revolution in this country that led to the enactment of the Fourth Amendment and the bill of rights, and that was a reaction to warrantless searches by the troops of King George."

"When we were asked to look at this and represent AFSCME, we did a painstaking analysis of constitutional law precedents dealing with employee drug testing," said Peter Walsh, an ACLU of Florida attorney working on the case. "This isn't a case of a governor arguably acting within the bounds of the US Constitution or even pushing the envelope to test the limits; the governor has ripped the envelope apart and jumped way over the line of what is permissible. He has violated the Fourth Amendment's search and seizure clause and done so in a big way."

There is also precedent from the Sunshine State itself. The city of Hollywood, Florida, enacted a municipal employee drug testing law little more than a decade ago, only to have it thrown out by the Florida courts in 2000. Four years later, the state Department of Juvenile Justice's effort to conduct suspicionless drug tests on employees was also thrown out. The department is a state agency covered by the governor's executive order.

"I'm not surprised but a little bit shocked that the governor would go ahead with issuing an executive order when this is about as close to settled law as possible," said Simon. "Federal judges have struck such programs down as searches without probable cause and without reasonable suspicion."

"Employee drug testing by urinalysis is particularly destructive of privacy, offensive to personal dignity, demeaning and an affront to dignity," said Walsh. "Those are the words of Justice Antonin Scalia from his dissenting opinion in a seminal case on employee drug testing."

In that case, the high court upheld suspicionless drug testing by private employers. US law provides few worker protections from employer drug testing. But drug testing by the government is a different matter, and constitutional protections unavailable to private sector workers come into play.

"People say this is so widespread in the private sector that what's the big deal," said Simon. "But just because it's widespread doesn't make it right. Public sector employees are protected by the Fourth Amendment; they have more protection of their rights to privacy. We are proud to be filing this lawsuit on their behalf."

Simon also hinted strongly that the ACLU of Florida would soon be filing another lawsuit, this one aimed at the welfare drug testing bill Gov. Scott signed this week. Like state worker drug testing, the courts have frowned on the suspicionless drug testing of welfare recipients. The last state to try to implement such a plan, Michigan, had its law thrown out as unconstitutional by a US district court in 2003.

Gov. Scott ran on a platform of reducing needless spending in the public sector. But he's about to spend big bucks on defending an executive order that is constitutionally indefensible and likely to spend even more defending the welfare drug testing law that is just as constitutionally indefensible.

Miami, FL
United States

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