The nation's highest court has begun its fall session, to include several cases with drug law enforcement and policy implications. All involve questions revolving around the Fourth Amendment's protections against unlawful search and seizures.
In Kyllo v. United States, the Supreme Court will consider whether the police use of thermal imaging devices to detect indoor marijuana grow operations constitutes a search that would require a warrant.
Because indoor marijuana grow operations typically use high-intensity lights which generate considerable heat, thermal searches are an increasingly popular tool for police seeking to ferret out such activities. Defendants have frequently challenged the use of thermal imaging as unconstitutional searches, but the lower courts have been divided on the practice.
Danny Lee Kyllo, an Oregon resident, was convicted of growing marijuana after police used a thermal imager to scan his residence and subsequently used "a suggestive heat pattern" as evidence to obtain a search warrant. The thermal search was not random; Kyllo's wife had been arrested on a drug charge and police suspected the couple was involved in a marijuana growing conspiracy.
In his appeal to the Supreme Court, Kyllo argues that his case "raises the fundamental question of whether the Fourth Amendment's guarantee of personal security in one's home must yield to scientific advances that render our traditional barriers of privacy obsolete."
In rejecting an earlier appeal, the 9th Circuit US Court of Appeals held that the use of thermal imaging did not constitute a search because the device "intruded into nothing" and did not violate a reasonable expectation of privacy. Similarly, in urging the Supreme Court not to review the case, the Justice Department argued that using thermal imagers "did not intrude on any expectation of privacy that society is prepared to recognize as reasonable."
In City of Indianapolis v. Edmond, for which oral arguments will be heard Tuesday, Fourth Amendment protections against unlawful search and seizure are again at issue. That case grew out of an arrest made after Indianapolis police set up a drug interdiction checkpoint on a city street and used drug-sniffing dogs to check stopped vehicles.
In the checkpoint program, which began in 1998, police pulled over a predetermined number of cars and asked drivers for their licenses and registration papers while drug-sniffing dogs walked around the stopped vehicles. Police conducted six roadblocks in high crime areas, stopping 1,161 vehicles and arresting 104 people, 55 of them on drug charges.
Indianapolis residents James Edmond and Joell Palmer, filed suit against the city, saying the police tactics were unconstitutional.
A three-judge panel from the 7th Circuit US Court of Appeals agreed. In their opinion, the judges noted that the Supreme Court had upheld the constitutionality of sobriety checkpoints and border roadblocks to detect illegal aliens, but argued that those were instances of "regulatory" controls. The Indianapolis roadblocks were different, said the court of appeals, because "the city concedes that its proximate goal is to catch drug offenders in the hope of incapacitating them, and deterring others, by criminal prosecution." For such crime suppression goals, said the court, probable cause must be shown.
"This is a significant case, one that will define a city's power to conduct random searches of vehicles whenever it perceives it has a problem," Kenneth Falk, the Indiana Civil Liberties Union lawyer arguing the case, told the Associated Press.
He added that a ruling that allows such searches for drugs also could allow random stops to find people who fail to make child-support payments or people who have not paid traffic fines.
Although the city has since stopped the practice, Gary Secrest, a lawyer for the city, told the AP the city filed the appeal "to keep open all options for detecting and arresting people who use or sell illegal drugs."
And in yet another Fourth Amendment case, on Wednesday the court will hear oral arguments in Ferguson v. City of Charleston, a case that has inflamed passions for nearly a decade. In the middle of the crack baby hysteria of the late 1980s and early 1990s, the Medical University of South Carolina, which served as Charleston's municipal hospital, made a practice of performing drug tests on the urine of unsuspecting pregnant women and turning them over to the police.
The claims about a crack baby epidemic and that crack cocaine was responsible for a variety of pathological conditions in newborns have not withstood sustained scientific scrutiny. For an overview of the research, see the Lindesmith Center's research brief at http://www.lindesmith.org/cites_sources/brief2.html.
Some 30 poor women, 28 of them black, were arrested while pregnant or immediately after giving birth and charged with distributing cocaine to a minor. Some were literally dragged to jail in their nightgowns, still bleeding from childbirth. In appealing their convictions, ten of the women argue that the hospital's policy violated Fourth Amendment protections against unreasonable searches.
City officials counter that the program met a "special government needs" exception to the Fourth Amendment because of the health problems and costs they associated with maternal cocaine use. The program was ended in 1993 when its legality came under challenge.
The 4th Circuit US Court of Appeals in Richmond agreed with the city, ruling that the testing was necessary and effective, and that it intruded only minimally on the mothers' privacy. That court found that because taking a urine sample is a normal part of medical care for pregnant women, any infringement on their rights was negligible.
The women's lawyers disagree. In their appeal to the Supreme Court, they argue that the government must show a search is not driven by law enforcement priorities if a warrantless search is to be allowed. Furthermore, they say, the 4th Circuit's reasoning would allow the government to conduct warrantless searches as long as it had a health or safety reason, a rule so broad the Fourth Amendment would be effectively gutted.
In their appeal, the women's lawyers wrote that the women "entered the care of the hospital as free citizens. They were assured by the hospital that their medical records would be treated as confidential."
Priscilla Smith of the New York-based Center for Reproductive Law & Policy, one of the lawyers representing the women, told USA Today, "This deceptive scheme strikes at the core of the physician-patient bond, undermining the trust and confidence."
The appeal has garnered support from the American Medical Association, the American Public Health Association, and the American Civil Liberties Union, as well as more than twenty other public health, civil liberties, and drug policy reform organizations. All have filed on joined in briefs to the Supreme Court urging that the convictions be overturned.
The Supreme Court will issue its rulings on these cases next spring.