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Feature: The Drug Checkpoint That Wasn't -- Louisiana Lawmen Play Fast and Loose with the Constitution

In its 2000 decision in Indianapolis v. Edmond, the US Supreme Court held that the city's effort to attack the drug trade by holding a checkpoint to look for drugs was an unconstitutional violation of the Fourth Amendment's protection of the right to be free from unwarranted searches and seizures. But in the years since then, a handful of departments across the county, usually in the South, have brazenly trumpeted their resort to drug checkpoints.

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nighttime driving checkpoint
The latest department to step into the breach was Louisiana's Beauregard Parish Sheriff's Office, which held such a checkpoint last Thursday night near the town of Starks. Following the lead of sheriff's deputies, the local newspaper was all over the story.

"Narcotics checkpoint a success," blared the headline in Monday's Derrider Daily News story on the police action. The article went on to explain how, following complaints of drug dealing in the neighborhood, police decided to take action:

"The Beauregard Parish Sheriff's Office set up a Narcotics Checkpoint Thursday night near Starks, Louisiana," the local paper reported. "Due to several complaints coming from the Fields area, the BPSO put together a joint operation with the help of Sheriff Ricky Moses and the DeRidder city police department. The operations utilized several BPSO deputies as well as the new Drug Interdiction team led by Detectives Dale Sharp and Greg Hill. Seven police units total were used for the operation in addition to four other units performing regular patrols."

The checkpoint resulted in three arrests for marijuana and hydrocodone possession, a quarter pound of marijuana being tossed from an unknown vehicle's window, and a number of traffic citations.

"If this really was a drug checkpoint, it is clearly unconstitutional," said Steve Silverman, executive director of the constitutional rights defense group Flex Your Rights. "If people went to court and fought it, the evidence would be dismissed -- unless they consented to a search. The sheriff down there must know checkpoints like this are constitutionally questionable, but they can still ask people to consent, and they know how to phrase that request in such a way that people are likely to consent," he said.

"If they are stopping and searching people without probable cause, that would appear to violate Edmonds, but we don't know for sure that's what they were doing," said Marjorie Esman, head of the ACLU's Louisiana affiliate. "Drug checkpoints are unconstitutional, but these guys sound like they are straight up trying to do one," said Esman.

While the Supreme Court has held drug checkpoints to be unconstitutional, it has allowed the use of checkpoints whose primary purpose is protecting certain safety-related governmental interests. Thus sobriety checkpoints are lawful, as are checkpoints to check drivers' licenses and motor vehicle registrations, as well as checkpoints designed to search for illegal aliens near the border. This week, the sheriff's office was busy arguing that it wasn't an unconstitutional drug checkpoint after all, merely a safety check.

"They're really safety checkpoints," backpedaled Beauregard Parish Sheriff's Office Chief Deputy Joe Toler. "The newspaper has its own spin on it," he said, adding that the warning signs specified a safety checkpoint, not a drug checkpoint.

The newspaper article certainly did have a spin, but that spin was provided by Beauregard Parish Deputy Dale Sharp, head of the department's new drug interdiction team. "The Narcotics Checkpoint's main objective was to get the narcotics off of the street," the article said before quoting Sharp: "Anything off of the streets is not in the hands of kids or anyone else," Sharp said in the article.

Sharp also bragged that more checkpoints could be coming soon. "Definitely," says Sharp. "As more complaints come in, we will be doing more."

But Chief Deputy Toler was sticking to the official line. "There just happened to be narcotics officers out there, and it just so happened that we did our safety checkpoint in a certain area where they place is known for drug trafficking," he said. "It just so happened they were all in the right place at the right time," he added.

Drivers and vehicles were not searched without consent, Toler said. "Everyone pretty much consents," he said.

"You can still refuse a search at a checkpoint," said Silverman. "They are not constitutionally allowed to search you just because they set up a checkpoint. You can say, 'I know you guys are just doing your job, but I have to go somewhere, am I free to go?' If they search you without probable cause and without your consent and they find something, you'll get arrested, but it's highly likely the charges will be thrown out. If not, it could go all the way to the Supreme Court."

It appears the sheriff's office is playing a pretty transparent game. They set up the checkpoint because of drug traffic complaints, they searched for drugs, and they had drug detection dogs on the scene -- not, presumably, to assist in reading drivers' licenses. But as long as police are careful to say the right things -- "It's a safety checkpoint" -- they can get away with it.

Flex Your Rights' Silverman also pointed out another permutation in law enforcement drug checkpoint tactics: the drug checkpoint that isn't. "If you see a warning that says drug checkpoint ahead, don't throw your stuff out the window, don't exit at the nearest ramp, don't do a sudden u-turn to get away, because it's not a drug checkpoint ahead, but a ruse by police," said Silverman. "The Supreme Court has held that drug checkpoints are an unconstitutional infringement on your Fourth Amendment rights, but that doesn't mean police can't try to fool you. At those fake drug checkpoints, they will have officers waiting to see who throws what out his window, or who suddenly exits to avoid the nonexistent checkpoint, and they will find a reason to stop you."

So, driving public, if you see a large warning sign that screams "Drug Checkpoint Ahead!" it is either a ruse or an unconstitutional law enforcement activity. But if you run across a sign that warns "Safety Checkpoint Ahead!" know that it is just as likely that police are looking for drugs in the guise of public safety as they are for expired drivers' licenses.

Europe: French Police Start Saliva-Testing Drivers for Drugs

French Interior Minister Michèle Alliot-Marie went to the French Riviera town of Antibes on Monday to give a public kick-off to a new French campaign to crack down on drugged drivers. In the new campaign, some 50,000 drug screening kits will be handed out across France.

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With the saliva tests, drivers are asked to spit on a stick, which is then dipped in a chemical substance to test for the presence of marijuana, ecstasy, cocaine, heroin, or amphetamines. If no drugs are present, a red line appears on the stick after a few moments. If drugs are detected, the stick stays white.

Any positive result must be followed up with a blood test to ensure that other medications are not creating a false positive. The consequences for a drugged driving conviction are steep: a maximum fine of about $6,700 and up to two years in jail.

The tests are not supposed to detect cannabis use for more than a few hours after smoking, but three of the first 10 tests tried at Antibes came back positive for marijuana. At least one of the drivers protested in vain that the last time he had smoked was three days earlier.

The saliva tests, similar to those used in South Australia, should save hundreds of lives a year, French officials said. A 2005 French study suggested that smoking marijuana doubled the risk of a fatal accident. When smoking was mixed with drinking, the risk increased 15-fold. The study claimed marijuana caused 230 highway deaths a year in France.

Not everyone agrees with the French position on marijuana and driving, including some of the leading experts in the field. Last October, 11 of them urged polities to reject zero tolerance impaired driving laws with respect to marijuana. Such laws are not evidence-based and could snare marijuana users who are not impaired, they said. Of course, if all else fails, police could just test for actual impairment, whatever the cause.

Racial Profiling: Latest Illinois Report Prompts Civil Rights Groups to Call for End to Consent Searches

The Illinois Department of Transportation earlier this month issued its annual report on race and traffic stops. The results showed that police were much more likely to ask minority drivers to consent to searches without probable cause, but that they were much less likely to actually find drugs, guns, or other contraband in consent searches directed at minority drivers.

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The results are consistent with the first three years of results under the state's traffic stop racial profiling monitoring program. That program went into effect in 2004 after the state legislature passed legislation authored by then state Sen. Barack Obama (D) enacting it.

The results prompted a coalition of civil rights groups to last week call on Gov. Rod Blagojevich (D) to end the practice of consent searches. In a letter to Blagojevich, the ACLU of Illinois, the Mexican American Legal Defense Fund, the Rainbow/Push Coalition and several other civil rights groups called consent searches an "invidious device" that results in "condition of inequality imposed on minority citizens on our roadways."

The groups specifically asked Blagojevich to end consent searches by the Illinois State Patrol, which had even worse results than law enforcement at large. According to the statewide data, police agencies searched blacks three times more often and Hispanics more than twice as often as whites. But police discovered illicit goods roughly twice as often when whites agreed to searches. State troopers similarly singled out minority drivers, but their "hit rate" for discovering contraband during consent searches was even more racially skewed. Troopers were twice as likely to discover contraband in consent searches of whites than blacks, and eight times more often than in vehicles driven by Hispanics.

"Now we have the proof in the pudding and that is that not only are these searches occurring with greater frequency among minority drivers, but that they are occurring with dramatically less effectiveness," Harvey Grossman, legal director for the ACLU of Illinois, told the Chicago Tribune.

"Officers are more trusting of whites than they are of blacks, and they are particularly suspicious of Hispanics," Grossman said of state police. "It's clear from the data that officers require less certainty when they ask Latinos to be searched than they do whites, there are more stringent standards for whites."

The Tribune also reported that Blagojevich, who has been critical of racial profiling in the past, issued a statement saying he opposed "any unjustified differential treatment of any group," but did not address the request to stop the searches. "I look forward to working with the coalition to further our shared goals," Blagojevich said.

Feature: The Vultures Circle Sturgis, But One Man Fights Back

South Dakota's annual Sturgis Motorcycle Rally begins next weekend and, as usual, is expected to draw huge crowds of motorcycling enthusiasts. Eric Sage won't be one of them. Instead, he will be busy suing a South Dakota county, its prosecutors, and a Highway Patrolman over what happened to him when he went last year.

In addition to the hordes of bikers, the rally also attracts the attention of South Dakota law enforcement, with the state pulling large numbers of Highway Patrol troopers from East River to the Black Hills, where they lurk on the sides of highways like vultures waiting for their prey. And, if Highway Patrol statistics are any indication, the hunting is good.

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Main Street during Sturgis Rally (courtesy Wikimedia)
Most weeks, state troopers make a handful of felony drug arrests and three or four dozen misdemeanor ones. Last year during Sturgis week, the Highway Patrol bragged that it had made a whopping 38 felony and 192 misdemeanor drug arrests.

Eric Sage and three of his friends made up four of them. As we reported last year, Sage was driving a motorcycle home from the rally while his three friends convoyed with him in a pick-up truck. Sage was pulled over for "weaving" in his own lane by a state trooper, and the pick-up stopped a ways up the road to wait for him. The trooper, Dan Trautman, then asked for and received permission to search the pick-up, and found a pipe and a miniscule amount of marijuana. He then charged all four with possession of paraphernalia, including Sage, who wasn't even in the vehicle.

Sage refused to plead guilty to a crime he had not committed. Then, just before an October dispositional hearing, Gina Nelson of the Pennington County state's attorney's office left a message on Sage's phone: "If you don't plead to 'paraphernalia', we'll charge you with 'ingestion'" -- an offense unique to South Dakota.

South Dakota Codified Law 22-42-15 prohibits ingesting anything except alcohol for the purpose of intoxication, and they'll put you in jail for as long as a year, and fine you as much as $1,000, for wanting to get "high" instead of drunk. It also doesn't matter if you were even in South Dakota when you ingested the drug: "The venue for a violation of this section exists in either the jurisdiction in which the substance was ingested, inhaled, or otherwise taken into the body or the jurisdiction in which the substance was detected in the body of the accused."

The basis for the ingestion charge was the admission by one of the pick-up passengers that she had smoked marijuana with her friends earlier in the day. As Trautman put it on his dashboard video, "You have all just admitted to smoking marijuana." Of course, that was not the case, but it was the basis for the prosecutorial intimidation effort.

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Eric Sage
Sage rejected the intimidating plea offer from Nelson and dutifully drove once more the 500-mile round trip from his Nebraska home to appear in court on the appointed day, only to find that Nelson had dropped the charges without bothering to notify him. Out several thousand dollars in legal fees, travel expenses, and lost wages, Sage wanted justice for his bogus arrest and prosecution.

Assisted by long-time activist Bob Newland, head of South Dakota NORML, whom he had contacted shortly after his arrest, Sage sent letters of complaint to the state Department of Public Safety, the South Dakota Bar Association, and the Pennington County Commission. In the latter letter, he also demanded damages.

Not surprisingly, he struck out with state and local authorities. Neither the county commission nor the Highway Patrol would pay his expenses incurred, nor would they even apologize for the mistreatment.

"The county commission gave the first complaint I sent them to the state's attorney's office and -- go figure! -- they lost it," Sage recounted this week. "When I sent a copy to all five commissioners, all I got was a letter from the state's attorney saying he would not respond. The Highway Patrol gave me the finger, basically saying that if I couldn't accept a frivolous charge every now and then, I should stay off their highways."

Sage had slightly better luck with the bar association. After claim and counter-claim by Sage and prosecutor Nelson, the bar found that Nelson had indeed violated two bar association precepts, the duty not to file unfounded charges and the duty not to unduly burden innocent parties. The bar punished Nelson for her prosecutorial misdeeds by "admonishing" her not to do it again.

That wasn't enough for Sage. On Tuesday, he filed a lawsuit against Pennington County, Pennington County Deputy State's Attorney Nelson, her boss, State's Attorney Glenn Brenner, and Highway Patrolman Trautman. The lawsuit seeks damages of slightly over $4,000 to compensate Sage for his malicious arrest and subsequent malicious prosecution.

The prosecutor's office did not respond to a call for comment.

"They wasted my time and my money for something they didn't have the least bit of evidence to prove even took place," Sage said. "If I don't get my money back, at least I'll get my money's worth."

"What happened to Eric Sage was outrageous," said South Dakota NORML's Newland. "To be honest with you, by this point I'm almost numb to their outrages, but after I heard his story, I thought, wow, this one is strange. They do a lot of bogus busts around here, but usually they at least have a shred of evidence."

Whatever the outcome of his civil suit, Sage is through with South Dakota. "I went to Sturgis three times in the past few years, and it just gets worse every year. If you see a cop, they're pulling someone over. They're just fishing for busts and the money they can make off them," Sage said. "I'm not going there again. I'm not going to South Dakota again. If I need to go to North Dakota, I'll go over to Iowa and Minnesota to get there."

"You don't even have to break the law to get stopped," said Newland. "Highway Patrolmen swarm the area between Sturgis and the Buffalo Chip campground a few miles away. For Sturgis week, that stretch of road is the most dangerous in America -- for getting busted. During peak traffic hours, the Highway Patrol is doing nothing but pulling over vehicles."

As for Sage, he has the following advice for anyone planning to head for Sturgis next week. "Good luck with that. Let me know how it turns out, because I won't be going. Know your rights."

Probable Cause: Washington Supreme Court Rules Marijuana Smell in Vehicle Not Enough to Arrest All Occupants

The Washington Supreme Court ruled July 17 that police cannot arrest passengers simply for being in a car that smells of marijuana. The unanimous decision overturned a 29-year-old precedent allowing police to search or arrest passengers if they smelled pot near a car.

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The case, State v. Grande, began with a 2006 traffic stop in Skagit County. Driver Lacee Hurley and passenger Jeremy Grande were arrested by a state trooper during a traffic stop after he smelled pot coming from their car. The trooper searched the pair, finding a pipe and a small amount of pot on Grande. Both were charged with drug offenses. At a pretrial hearing, Grande's judge ruled there was no specific probable cause for his arrest and suppressed the evidence. But the Skagit County Superior Court overturned that ruling, citing a 1979 appellate court ruling saying the smell of pot smoke coming from a car was probable cause to arrest all the occupants.

But the state Supreme Court said federal case law since 1979 has eroded the legal footing of that decision. Officers need additional evidence that each passenger broke the law, the court held.

"Our cases have strongly and rightfully protected our constitution's protection of individual privacy. The protections... do not fade away or disappear within the confines of an automobile," Justice Charles Johnson wrote for the court.

"We hold that the smell of marijuana in the general area where an individual is located is insufficient, without more, to support probable cause for arrest. Where no other evidence exists linking the passenger to any criminal activity, an arrest of the passenger on the suspicion of possession of illegal substances, and any subsequent searches, is invalid and an unconstitutional invasion of that individual's right to privacy," the opinion concluded.

The ruling won quick praise from drug reformers and civil libertarians. "As a general statement, it's a step back from the direction that our government has been going as we're veering into a sort of surveillance society," Alison Holcomb of the American Civil Liberties Union's Washington chapter told the Seattle Post-Intelligencer. "It strikes me as refreshing that the court has reaffirmed the values that our constitution calls for."

Seattle Hempfest organizer Vivian McPeak told the newspaper it was not uncommon for people to be arrested, jailed, stigmatized, and have their property seized simply for being in a vehicle with someone carrying or smoking pot. "A lot of people have gone down because of these vehicle offenses," he said. "Being in a car used to be one of those wrong-place, wrong-time kind of situations."

Grande's attorney, David Zuckerman, cheered the ruling, but added it was "unfortunate" it took so long to overturn previous state case law on drug-smell arrests. "I think it's led to an awful lot of innocent people getting handcuffed by the side of the road just because they happened to be in a car that smells of marijuana," Zuckerman said.

Drug Prohibition: No Clue in the Texas Legislature

If drug reform is making any headway in the Lone Star State (and it is), there was little sign of it Wednesday at an Austin hearing of the state Senate Criminal Justice Committee. The committee is charged with examining current drug laws to see which are working and which are not and trying to come up with more effective drug policies.

With Mexican drug trafficking organizations sending billions of dollars worth of drugs across the border each year, much of it through Texas, state and local law enforcement agencies have been cooperating with federal agents to try to crack down on the trade. But it hasn't seemed to have had any impact, and that was a frustration for Sen. John Whitmire (D-Houston).

"It don't affect the price of it at all, which means it ain't made a dent. Still huge amounts are getting through," he said in remarks reported by Austin TV station KVUE. "If you know where it's coming from, why can't you do more about it?" he asked plaintively.

Whitmire's ignorance of the laws of supply and demand when it comes to drug prohibition is apparently equaled only by his ignorance of the US Constitution, and particularly the Fourth Amendment. At least, that's what his next comment suggested.

"If in fact so much of the narcotics is just coming up and down our highways and the main roads out of Mexico, why don't we just pull over more trucks?" Whitmire said. "It would be fun to try. I like that, zero tolerance."

Of course, every vehicle entering the US from Mexico must go through US Customs at the border. And then there's the Border Patrol checkpoints on highways leading north from the border. And then there's the saturation level patrols of those highways (although, to be fair, Texas cops are as interested in cars heading south as those heading north, because while the latter may contain drugs, the former may contain cash). But none of that is enough for Whitmire. Nor does it cause him to question his premises.

It looks like it will be business as usual in the drug war in Texas.

Feature: Summer's Here and the Time is Right for... Getting Busted Going to the Festival (If You're Not Careful)

With Memorial Day now just a memory, the summer music festival season is on -- and with it, special drug law enforcement aimed at festival goers in what could be called a form of cultural profiling. If years past are any indicator, music lovers should be prepared to encounter everything from announced "Drug Checkpoints" that aren't -- they are instead traps to lure the freaked out -- to real, unconstitutional, highway drug checkpoints masquerading as "safety checks" (complete with drug dogs) to undercover cops working inside the festival grounds themselves.

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Richard Anderson, via commons.wikimedia.org
Nationally known festivals like Bonaroo in Tennessee and Wakarusa in Kansas, as well as countless lesser festivals, especially in rural areas, have drawn special law enforcement efforts in the past. With this year unlikely to be any different, festival goers will need to know their rights and how to exercise them when they encounter the cops.

The police enforcement actions are already getting underway. Last weekend, the 2008 Summer Camp Festival in Chillicothe, Illinois, drew some 13,000 fans to hear a diverse line-up of bands including the Flaming Lips, George Clinton & Parliament/Funkadelic, Blind Melon, the Roots, and the New Pornographers. It also drew city and state police, who claimed 20 drug arrests -- for marijuana, ecstasy, and LSD -- between them in and around the festival.

The police were pleased. "I think a lot of it had to do with all of the agencies getting together before the event and really planning out our attack," Chillicothe Police Chief Steven Maurer told local HOI-19 TV News. "Our goal is to prevent it from coming in and that's what we did a lot of."

Meanwhile, down in northeast Georgia, some other law enforcement agencies had also gotten together to plan an attack. This one wasn't aimed directly at concert-goers, but at the highway-traveling public in general. In what the Northeast Georgian described as "one of the county's largest highway interdiction and safety checks in at least five years," personnel from the Habersham County Sheriff's Office, Northeast Georgia Drug Task Force, Georgia National Guard Counter Drug Task Force, Georgia State Patrol, Georgia Bureau of Investigation, Georgia Department of Public Safety Motor Carrier Compliance Unit, Lee Arrendale State Prison, Phillips State Prison and Cornelia Police Department participated in a 24-hour checkpoint on a local highway.

Police bragged about the success of their checkpoint, which netted 74 arrests, 31 of them for drug offenses. "It worked well, I thought," said Habersham County Sheriff De Ray Fincher. "The operation resulted in a seizure of $36,000 in illegal drugs. And a total amount of currency, drugs and vehicles seized is estimated to have a value of $82,000."

Police did write some tickets for traffic offenses, Fincher told WNEG-TV 32 News. "We got a lot of people with no insurance, no driver's license or suspended license," he said. And some pot smokers: "The majority of our cases were marijuana cases; however, we did get several methamphetamine and we got one case of cocaine," Fincher explained.

In a 2000 Supreme Court decision, Indianapolis v. Edmonds, the high court held that indiscriminate highway drug checkpoints were unconstitutional since motorists were being stopped without suspicion for a law enforcement -- not a public safety -- purpose.

But Fincher was open about his constitutionally-suspect highway checkpoint. "We are trying to do everything we can to prevent drug activity in Habersham County, whether it's just passing through or stopping here," he said, noting that drug arrests in the county were on the rise. "That just means we've taken a real aggressive approach to drug enforcement."

"In the wake of the Indianapolis case, law enforcement has tried to figure out ways to still conduct drug checkpoints that comport with that ruling," said Adam Wolf of the ACLU Drug Law Reform Project. "Intent is the name of the game. If the intent is to conduct a checkpoint basically for law enforcement purposes, that's not okay. If it's for public safety purposes, such as sobriety checkpoints, that is okay."

A constitutional challenge to any given checkpoint would turn on intent, said Wolf. "If it turns out the intent was primarily to be a drug checkpoint, that would be an unreasonable search and not comply with the Constitution," he said. "That kind of checkpoint should be shut down, but it would take someone to challenge it."

Noting Sheriff Fincher's report of cash and goods seized, Wolf suggested the purpose of the checkpoints could really be about something other than law enforcement or public safety. "So often these things are being done to fund law enforcement agencies. Asset forfeiture is really a cash cow," he said.

Whether the checkpoints or other special law enforcement tactics are to raise money, wage the drug war, or indeed for "public safety," experts consulted by the Chronicle sang a remarkably similar song: Be prepared, don't be stupid, and don't give away your rights.

"The most efficient way to get arrested for marijuana possession short of blowing pot smoke in an officer's face is to smoke marijuana while driving or parked in your car, especially on the way to a festival," said Steven Silverman of the civil liberties group Flex Your Rights, which has released a video instructing people how to flex theirs. "You have a minimal expectation of privacy, and it reeks. Officers can smell it, and if they can smell it, that's probable cause to search you."

"Keep your private items out of view," recommended the ACLU's Wolf. A baggie full of weed on the front seat is all the probable cause an officer needs to search the vehicle and arrest the owner.

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car search
"The only sure thing to do is not to carry," said Keith Stroup, founder and currently senior counsel for the National Organization for the Reform of Marijuana Laws (NORML). "But the problem with that is there may or may not be good marijuana available at the festivals. If you're going to bring something with you, keep the quantity as small as possible, and for God's sake, don't smoke in the car!"

If you are stopped at a checkpoint (or pulled over for any reason) and you haven't provided police probable cause to search you or your vehicle, now is the time to exercise your rights. People in such situations should be polite but assertive, the experts said.

"If you are pulled over by police for any reason, the officers are very likely to ask you to consent to a search," said Silverman. "Don't do it. Never, ever consent under any circumstances. It might be couched in terms of a command, but it is a request. If you consent, you are waiving your Fourth Amendment protection against unreasonable search and seizure. They won't 'go easier' on you; anything they find, they will confiscate, and arrest you and put you in jail. Don't do their job for them."

"There is no circumstance I can imagine where you should ever consent to a search," agreed NORML's Stroup. "If you give permission, you waive your Fourth Amendment protections. They may say it'll go easier if you cooperate, but that's bullshit. Their only reason for being there is to see if you have contraband and arrest you and put you in jail if you do."

"Just say no to warrantless searches," echoed the ACLU's Wolf. "Officers won't tell you you have the right not to consent, but you do, and it is one that people have held dear since the founding of the Republic."

There are other highway hazards for the unwary festival-goer. Law enforcement can be creative in its unending war on drug users and sellers.

"Anybody driving to see his favorite band should also be aware of fake drug checkpoints," said Silverman. "Drug checkpoints are unconstitutional, but what some sheriffs will do close to festival sites is set up a big 'Drug Checkpoint Ahead' sign, and then watch who turns off the highway at the next ramp or who throws something out his car window. Then they pull them over for littering or failure to signal a lane change or something. If you see such a sign, keep driving -- it's a bluff designed to see who it scares."

"When you see a sign like that, proceed ahead within the speed limit, driving safely through the area," advised Wolf.

Wolf has problems with the harassment of festival-goers that run deeper than particular law enforcement tactics. "Profiling based on race is not okay, profiling based on gender is not okay, and profiling based on the type of concert you attend is not okay," he said. "It's unreasonable and unjustifiable for police to target a group of people because they are going to any particular type of concert."

"Simply having a Grateful Dead sticker or dreadlocks doesn't constitute reasonable suspicion of anything," agreed Silverman.

But in the real world, it can. Festival-goers and other highway travelers need to be aware of their rights, as well as the realities of life in the contemporary US, as they hit the highway this summer.

And one last thing once you actually make it to the festival. "There's a big myth out there that police officers must reveal if they're an undercover cop," said Silverman. "That's wrong, and it's stupid to believe that. Police officers can and do legally lie in doing their jobs. Believing that has probably led to thousands of people being arrested."

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.

Search and Seizure: Supreme Court Rules Passengers Can Challenge Police Stops

In a unanimous decision, the US Supreme Court held Monday that passengers in a car stopped by police have the same right to challenge the constitutionality of that stop as the driver. The court held that when police stop a vehicle, the passengers are "seized" and have the right to challenge the legality of that seizure in court.

The ruling came in the case of California resident Bruce Edward Brendlin, who was arrested on parole violation and drug charges after the car in which he was riding was pulled over for what turned out to be bogus reasons by police. Once police had stopped the vehicle, they ordered Brendlin out of the car, searched him, the driver, and the vehicle, and found a syringe cap, a small amount of marijuana, and ingredients used to home cook methamphetamine.

While the driver of the vehicle did not challenge the constitutionality of the traffic stop, Brendlin did. He filed a motion to suppress the evidence against him, arguing that the traffic stop amounted to "an unlawful seizure of his person."

A California appeals court agreed, but the California Supreme Court overturned the appeals court decision. Instead, the California high court agreed with the state that even though police "had no adequate justification" to stop the vehicle in which Brendlin was riding, only the driver -- not any passengers -- had been "seized." Passengers in a vehicle stopped by police "would feel free to depart or otherwise to conduct his or her affairs as though the police were not present," the court reasoned.

But the US Supreme Court begged to differ. Any "reasonable passenger" would not feel free to simply leave the scene of a traffic stop, wrote Justice David Souter in the opinion in Brendlin v. California. "A traffic stop necessarily curtails the travel a passenger has chosen just as much as it halts the driver," Souder wrote. "Brendlin was seized from the moment [the driver's] car came to a halt on the side of the road, and it was error to deny his suppression motion on the ground that seizure occurred only at the formal arrest."

To find in favor of California's position that passengers are not "seized" during a traffic stop "would invite police officers to stop cars with passengers regardless of probable cause or reasonable suspicion of anything illegal," Souter wrote. "The fact that evidence uncovered as a result of an arbitrary traffic stop would still be admissible against any passengers would be a powerful incentive to run the kind of 'roving patrols' that would still violate the driver's Fourth Amendment right."

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.
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