Summer is here and the time is right for checking out your favorite musical acts at the big musical festivals or package concert tours that help make the season so enjoyable. But where there is the prospect of rock 'n' roll and massive crowds, law enforcement can get downright twitchy, and summer-time concert-goers too often find themselves suddenly face to face with the law, sometimes with sad consequences. That's what happened to unsuspecting ticket holders arriving for the Wakarusa Music Festival outside Lawrence, Kansas. With some 70 acts, including such stellar performers as Gov't Mule, pedal-steel guitar wizard Robert Randolph and the Family Band, the Reverend Horton Heat, Michael Franti's Spearhead, and instrumental whiz Bernie Worrell and the Woo Warriors, the June 8-11 event drew thousands down the Kansas Turnpike. At the exit for the festival, however, the DEA, the FBI, the Kansas Highway Patrol, and the Douglas County Sheriff's Office set up a "driver's license and sobriety" checkpoint, netting dozens of people.
Interestingly, the "sobriety" checkpoint managed to net seven times as many people carrying their stashes to the show as drunk drivers. According to the US Supreme Court, it is unconstitutional for law enforcement to set up highway checkpoints to search for drugs, although the court has held that police agencies are within their rights to conduct such checks for highway safety purposes. But if there are clouds of pot smoke pouring out of your car, it isn't going to matter much what the legal justification for the highway stop is. You have just provided police with probable cause to search you and your vehicle.
What happened at Wakarusa this year has happened at other festivals in the past -- both music festivals and more politically-oriented Hempstock-type events -- and will undoubtedly occur again this summer at one or more festivals around the country. People who want to get out and enjoy the music need to be smart, said a group devoted to helping people exercise their constitutional rights.
"Even at one of these checkpoints, attending a summer concert does not give police probable cause to search you or your car. Don't give them probable cause and don't waive your rights," said Scott Morgan, associate director of Flex Your Rights (FyR), the 4th amendment education group whose "BUSTED: A Citizen's Guide to Police Encounters" video has become must see viewing for people interested in fending off overly inquisitive police officers. "Keep your private items out of sight and refuse any and all police search requests," he advised.
"You need to be in total control of yourself and your vehicle when approaching one of these summer venues," Morgan continued. "Because these events are often heavily policed and police are very suspicious, it's important for drivers to be calm and be prepared to intelligently assert their constitutional right to refuse unreasonable searches."
Law enforcement had drug dogs on hand, but the checkpoints were not drug check points, Eichkorn was careful to emphasize. "The primary concern was drivers' licenses and sobriety. If someone didn't have a license or if the officer had other indicators that suggested possible further criminal activity, the vehicle was pulled out of the line and off to the side, where we had narcotic canines available to walk around the vehicle." Drivers in the check lane who did not arouse suspicion were not subjected to drug dog sniffs, he added.
Eichkorn defended the use of drug dogs at what was ostensibly a license and sobriety check point. "We try to be as well rounded as possible in determining possible further criminal activity. We had the breathalyzer van on the scene, too. It's better to have our resources on site so we can quickly deal with people," he said. The courts have held the police can only detain people to await a drug dog sniff for an undefined "reasonable" amount of time. "The drug dogs are a good thing to have in situations where there could be further criminal activity."
FyR's Morgan wasn't buying. "The presence of drug dogs at a checkpoint that is supposed to be for traffic safety purposes strongly suggests law enforcement has another, unstated goal," said Morgan. "Any citizen who is busted by drug dogs at one of these checkpoints should consult an attorney about the possibility of it being an illegal, unconstitutional drug checkpoint."
Back in Lawrence, not everyone was happy with the checkpoint. Festival-goers grumbled to the local press about harassment and waiting for hours to get into the concert, and local civil liberties watch dogs were expressing concerns. But no one was ready to file a complaint, said Phil Minkin, head of the Douglas County ACLU in Lawrence. "I guess they were too busy trying to enjoy themselves at the festival to worry about their civil liberties," he told DRCNet.
The Douglas County ACLU has issues with the checkpoints, Minkin said. "One of the problems we have with this is it wasn't an all-inclusive traffic checkpoint. On the Kansas Turnpike, we have something called K-tags, which allow people to go through the toll booths without stopping. No one with a K-tag got stopped and searched. This looks like selective enforcement of the law," he said. "If they are going to have these traffic stops, they have to stop everyone, and letting people with the tags go through unimpeded violates the spirit if not the letter of the law."
It's not just the special treatment of K-tag drivers that is fueling allegations of selective enforcement. "There was a much larger music festival last weekend in Manhattan, Kansas, but there were no traffic stops there," Minkin noted. "Of course, that was strictly a country music festival. It seems like this concert was targeted for special attention."
The Highway Patrol's Eichkorn denied the charges of selective enforcement based on musical genre, saying that law enforcement was also out in force at the country music festival for similar reasons. But he admitted that the country music fans had not been subjected to the highway checkpoint facing the rock fans. "Those check lanes take a lot of resources," he explained. "Hopefully, they should be used as a deterrent."
Minkin also raised concerns about the basis for selecting drivers and automobiles for special attention. "Another problem we have is what police are using to establish probable cause to search vehicles," Minkin said. "Having a tie-dye t-shirt is not probable cause for a search."
And despite the Douglas County ACLU's inability to come up with a complainant, a civil action may be coming down the pike, Minkin said. "I've been talking to the state ACLU executive director, and my understanding is there is an attorney in town who is pursuing a class action lawsuit," he said, adding that he was not ready to reveal the attorney's name. In the meantime, the local ACLU is girding its loins for the next Watarusa festival. "We're actively preparing to have attorneys poised for an injunction next year in the event of actions by law enforcement of questionable legality, and we've just printed some ACLU rights cards."
The Drug Policy Forum of Kansas (DPFKS) has also raised concerns over the operation, sending a letter to Kansas Bureau of Investigation Director Larry Welch questioning the legality of using federal funding earmarked for meth interdiction for these checkpoints. Welch responded with a letter saying that the KBI web site was out of date and that the funds could legally be used for this type of checkpoint. He also stated the drug sweep netted "significant drug traffickers."
"I don't know what the KBI Director's been smoking, but the checkpoint, and the cops inside the festival, arrested more people for minor-in-possession (MIP) than anything else." said DPFKS executive director Laura Green. "The county received more than $12,000 dollars in fines from people receiving MIPs and minor drug possession charges. We hope in the future people will remember that these convictions stay on their record, even though they may have plead no contest in court. Clearly, these checkpoints were a revenue-generating source for local and state law enforcement to keep the war on drugs machinery well oiled. If everyone who was arrested had fought their conviction, the courts in Lawrence would not have been able to handle the volume and more cases would have been dismissed."
DPFKS has filed Kansas Open Record Act requests with the local and state police and district attorney's office seeking the exact number of persons arrested, and the amount of money seized from the defendants."We believe once the people of Kansas know the amount of money that was seized from these festival-goers, and where the money went, they will agree this kind of highway robbery must not happen again."
That's how it went in Kansas. How it goes in the rest of the country depends not only on the degree to which law enforcement aggressively pursuers young concert-goers, but also on the concert-goers' awareness of the law and their rights and on the willingness of organizations devoted to defending those rights to step up to the plate.