Search and Seizure

Two teachers in Norfolk, VA were suspended this week after showing BUSTED to a 12th grade government class. Apparently, Americans are supposed to remain ignorant about their basic constitutional rights, so we can keep arresting them at record rates every year.

You can read my thoughts on the matter at the Flex Your Rights blog.

Here's an Arizona case that illustrates why you should never give police consent to search your vehicle:

The state appellate court has overturned the cocaine-transportation conviction of a Canadian man passing through Flagstaff after ruling the search of his vehicle was illegal.

The reason: The Arizona Department of Public Safety officer who stopped Alvin J. Sweeney, 53, didn't have reasonable suspicion to search his vehicle. [AZDailySun.com]

The suspect refused the search, and although the officer detained him and ultimately searched the car anyway, the whole thing was ultimately thrown out in court. If he'd agreed to the search, the evidence would have been admissible and he'd still be in jail.

Something to keep in mind, even if you've never broken a law in your life. Unless you're the only person who's ever set foot in your car or house, how can you really be sure there's nothing that could get you in trouble?

As the Chronicle story below reports, New York City is about to pay yet again for unlawfully strip-searching minor offenders, including people busted for public pot possession. If this includes you, it just might behoove you to contact the law firm handling the lawsuit in question, Emery, Celli, Brinckerhoff, and Abady. Here's the story: Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches For the third time in the past ten years, New York City has been forced to pay big bucks for subjecting non-violent prisoners—including minor marijuana offenders—to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to settle the most recent lawsuit stemming from the illegal strip searches. The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007. In 2001, under the Giulani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002. The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007. Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice." It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts. Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets—which you are not required to do—and then charging them with public possession of marijuana, a misdemeanor. David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search. "I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated." "I don’t know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge." And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.

As the Chronicle story below reports, New York City is about to pay yet again for unlawfully strip-searching minor offenders, including people busted for public pot possession. If this includes you, it just might behoove you to contact the law firm handling the lawsuit in question, Emery, Celli, Brinckerhoff, and Abady. Here's the story: Law Enforcement: New York City to Pay Out $33 Million for Unlawful Strip Searches For the third time in the past ten years, New York City has been forced to pay big bucks for subjecting non-violent prisoners—including minor marijuana offenders—to illegal strip searches. In a settlement announced Monday, the city announced it had agreed to pay $33 million to settle the most recent lawsuit stemming from the illegal strip searches. The settlement applies to roughly 100,000 people who were strip-searched after being charged with misdemeanors and taken to Rikers Island or other city jails. These were people who were arrested and strip-searched between 1999 and 2007. In 2001, under the Giulani administration, the city settled a similar lawsuit on behalf of 40,000 people strip-searched prior to arraignment for $40 million. In 2005, the city agreed to pay millions of dollars more to settle a lawsuit on behalf of thousands of people illegally strip-searched at Rikers and other city jails between 1999 and 2002. The most recent settlement came from a lawsuit filed in 2005 by a local law firm. In 2007, the city acknowledged wrongdoing and agreed to hire monitors to ensure that the practice was stopped. But the settlement includes at least 19 people who had been illegally strip-searched after 2007. Richard Emery, law lawyer for the plaintiffs, told the New York Times it had been settled law since 1986 that it was unconstitutional to require people accused of minor crimes to submit to strip searches. "The city knew this was illegal in 1986, they said it was illegal and they stopped in 2002, and they continued to pursue this illegal practice without justification," he said. "We hope the settlement constitutes some semblance of justice." It is expected that about 15% of those illegally strip searched, or 15,000 people, will file claims seeking damages. If that's the case, each plaintiff who files would collect about $2,000, although at least two women subjected to involuntary gynecological exams will receive $20,000. The law firm will get $3 million for its efforts. Emery said many of those strip-searched had been charged with misdemeanors like shoplifting, trespassing, jumping subway turnstiles, or failure to pay child support. Others were small-time marijuana offenders. Under New York law, pot possession is decriminalized, but the NYPD has a common practice of ordering people to empty their pockets—which you are not required to do—and then charging them with public possession of marijuana, a misdemeanor. David Sanchez, 39, of the Bronx, was one of the people strip-searched after a minor pot bust. He said he was searched twice by officers after being arrested in a stop and frisk outside a friend's apartment, but after he was arraigned and taken to Rikers Island, jail guards demanded he submit to a strip-search. "I was put into a cage and told to take off my clothes," he said Monday, describing how he had to squat and spread his buttocks. "It was horrifying, being a grown man. I was humiliated." "I don’t know why it was done," Emery said, "but it seems like it was a punishment, a way of showing the inmates who is in charge." And now the good burghers of New York City will pay yet again for the misdeeds of their public servants. Will the third time be the charm? Check back in a few years.

In 2008, the latest year tallied in the FBI's Uniform Crime Report, more than 14,000,000 people were arrested in the United States, and uncounted millions more were subject to "stop and frisk" searches either on the streets or after being stopped for an alleged traffic violations. Of all those arrests in 2008, more than 1.7 million were for drug offenses, and about half of those were for marijuana offenses. For both pot busts in particular and drug arrests in general, nearly 90% of those arrested were for simple possession.

10 Rules is available with a donation to StoptheDrugWar.org now!

"10 Rules" will help the both the entirely innocent and those guilty of nothing more of possessing drugs in violation of our contemptible drug laws reduce the harm of their run-ins with police. Not that it encourages the violation of any laws -- it doesn't -- but it does clearly, concisely, and effectively explain what people can do to exercise their constitutional rights while keeping their cool, in the process protecting themselves from police who may not have their best interests in mind. Those stops and those arrests mentioned above, of course, were not random or evenly distributed among the population. If you're young, or non-white, or an identifiable member of some sub-culture fairly or unfairly associated with drug use, you are much more likely to be stopped, hassled, and perhaps arrested. The writers of "10 Rules," Scott Morgan and Steve Silverman of Flex Your Rights understand that. Building on the foundation of their 2003 video, "Busted: A Citizen's Guide to Surviving Police Encounters," which featured mainly young, white people involved in police encounters, Morgan and Silverman have expanded their target audience. In three of the four scenarios used in the video -- a traffic stop and search, a street stop-and-frisk search, and a knock-and-talk home search -- the protagonists are a young black man, a young Latino man, and a black grandmother, respectively. In only one scene, two young men apparently doing a dope deal on the street, are the citizen protagonists white. That's not to say that "10 Rules" is intended only for the communities most targeted by police, just that the writers understand just who is being targeted by police. The lessons and wisdom of "10 Rules" are universally relevant in the United States, and all of us can benefit from knowing what our rights are and how to exercise them effectively. "10 Rules" does precisely that, and it does so in a street-smart way that understands cops sometimes don't want to play by the rules. "10 Rules" build upon the earlier "Busted" in more than one sense. While "10 Rules" is expanding the terrain covered by "Busted," it has taken the cinematic quality to the next level, too. While "Busted" was made using a beta cam, this flick is shot in High Definition video, and that makes for some great production values, which are evident from the opening scene. "10 Rules" was shot on a bigger budget that "Busted," it has more actors (including some drug reform faces you might recognize), and more professional actors, and it has more of the feel of a movie than most video documentaries. And it has legendary defense attorney William "Billy" Murphy, who plays the role of socratic interlocuter in the video. (You may remember him from appearances on HBO's "The Wire.") Appearing in a courtroom-like setting before a multi-ethnic group of very interested questioners, the pony-tailed lawyer begins with a basic discussion of the rights granted us by the US Constitution, especially the Fourth, Fifth, and Sixth amendments dealing with the right to be free of unwarranted searches, the right to stay silent, and the right to legal counsel. His performance, folksy, yet forceful; scholarly, yet, street-savvy, sparkles throughout; his natural charisma shines through. From there, we alternate between Williams and his audience and the scenarios mentioned above. We see the young black man, Darren, get pulled over in traffic, produce a bit of bad attitude, and suffer mightily for his efforts. He gets handcuffed, manhandled, and consents to a search of his vehicle, after which the cop leaves his belongings strewn in the wet road and gives him a traffic ticket. Then it's back to the courtroom, where Darren, angry and feeling disrespected, tells his tale. Murphy is sympathetic, but explains that Darren broke rule #1. "Rule #1, always be calm and collected," the veteran attorney intones. "A police encounter is absolutely the worst time and place to vent your frustrations about getting stopped by the police. As soon as you opened your mouth, you failed the attitude test. Don't ever talk back, don't raise your voice, don't use profanity. Being hostile to police is stupid and dangerous." Such advice may be frustrating, but it's smart, and it's street-smart. Murphy noted that things could have turned out even worse, as the video showed in an alternate take on the scene with Darren twitching on the ground after getting tasered for his efforts. He also threw in some good advice about pulling over immediately, turning off the car, keeping your hands on the wheel, and turning on an interior light just to reduce police officers' nervousness level. Murphy uses the same scenario with Darren to get through rule #2 ("You always have the right to remain silent"), rule #3 ("You have the right to refuse searches), rule #4 ("Don't get fooled" -- the police can and will lie to you or tell you you'll get off easier if you do what they ask), and rule #5 ("Ask if you are free to go"). This time, the cop still has a bad attitude and Darren still gets a ticket, but he doesn't counterproductively antagonize the cop, he doesn't get rousted and handcuffed, he doesn't allow the cop to search his vehicle, he doesn't get intimated by the officers' threat to bring in a drug dog that will tear up his car, and he does ask if he's free to go. He is. Which brings us to a discussion of probable cause and and rule #6: "Don't expose yourself" and give police probable cause to search you. The video shows a car with bumper stickers saying "Got Weed?" "Bad Cop, No Donut," and "My other gun is a Tech-9" -- probably not a smart idea unless you really enjoy getting pulled over and hassled. More generally, "don't expose yourself" means that if you are carrying items you really don't want the police to see (and arrest you for), don't leave them lying around in plain sight. That's instant probable cause. I'm not going to tell you the rest of the rules because I want you to see the video for yourself. But I will tell you about the heart-rending scene where the black grandmother lets police search her home in the name of public safety -- there have been some gang gun crimes, they explain pleasantly -- and ends up getting busted for her granddaughter's pot stash, arrested, and is now facing eviction from her public housing. Under Murphy's guidance, we rewind and replay the scene, with grandma politely but firmly exercising her rights, keeping the cops out of her home, and not going to jail or threatened with losing her home. In a time when police are more aggressive than ever, "10 Rules" is an absolutely necessary corrective, full of folksy -- but accurate -- information. "10 Rules" is the kind of basic primer on your rights that every citizen needs to know, it's well-thought out and well-written, and it not only is it full of critically important information, it's entertaining. Go watch it and learn how to flex your rights. Better yet, watch it together with your friends, your family, or your classmates, then practice putting the rules into effect. Sometimes it's as simple as saying a simple phrase -- "Officer, am I free to go?" Do some role-playing, practice saying the magic words, and "10 Rules" can help you survive any police encounter in better shape than otherwise. When you're done, watch it and practice again -- familiarity is the best help when facing an intimidating police officer staring down at you. We all owe a debt of gratitude to people who feel strongly enough about the rule of law in this country to help others learn how the law protects them and how to protect themselves within the law. A big thank you to the guys at Flex Your Rights is in order. And they would be the first to tell you the best way to thank them is to learn and apply the "10 Rules."

At least two US citizens were killed in their own homes by American police enforcing the war on drugs in a 48-hour period late last week. One was a 52-year-old white grandmother; the other was a 43-year-old black man. Both allegedly confronted home-invading officers with weapons; both were shot to death. No police officers were injured.

Brenda Van Zwieten

The combination of widespread gun ownership in the US with aggressive drug war policing is a recipe for tragedy, one that is repeated on a regular basis. Gun owners commonly cite protecting themselves from home-invading robbers as a reason for arming themselves, while police cite widespread gun ownership as a reason they need to use SWAT-style tactics, breaking down doors and using overwhelming force against potential shooters. That homeowners would pick up a weapon upon hearing their doors broken down is not surprising, nor is it surprising that police are quick to shoot to kill "suspects" who may pose a threat to them. The first killing came Thursday morning in North Memphis, when a Bartlett, Tennessee, police narcotics squad serving a search warrant for drug possession -- not sales, manufacture, or possession with intent to sell -- shot and killed Malcolm Shaw, 43, after breaking into his home. Police said they knocked on Shaw's door several times and identified themselves as police before entering the home. Police said Shaw emerged from a room and pointed a gun at plainclothes officer Patrick Cicci. Cicci fired once, killing Shaw. Cicci is on administrative leave pending an internal investigation. While the Bartlett Police investigation is ongoing, that didn't stop the Shelby County District Attorney's Office from announcing Monday that Cicci will not be prosecuted. Cicci's killing of the homeowner was "apparent justifiable use of deadly force in self defense," a spokesman said. Bartlett police said that while the Bartlett narcs conducting the raid were not in uniform, their gear clearly identified them as law enforcement. They wore "high-visibility vests" marked "POLICE" in several spots, police said. The killing of the well-known neighborhood handyman led to the formation of a crowd hostile to police outside his home. Bartlett police on the scene had to call Memphis police to do crowd control. Memphis police complained that the Bartlett narcs had not followed law enforcement protocols requiring them to notify the local agency when they were operating in its jurisdiction. They said they were notified only as the raid commenced, and that moments later, they got a request for an ambulance at the address, and moments after that, they got a request that they send a couple of police cruisers for crowd control. Timothy Miers, who said he was Shaw's brother accused police of being trigger-happy. "How you gonna go in serving a warrant and shoot somebody?" Miers asked. "They already had their finger on the trigger." The sense of disbelief over the killing was shared by members of the crowd gathered outside Shaw's home. Many complained about the officers' actions. "My heart fell to the ground," one neighbor said. "We can't believe it," said another. "Malcolm out of all people." Family members expressed confusion about the shooting, saying Shaw was not a person they would have expected to threaten officers. "They say he had a gun," said Miers. "My brother doesn't have no gun." Friends of Shaw said the same thing. "I ain't never seen him with no gun," said Arvette Thomas, a friend of Shaw. Shaw never bothered anyone, neighbors said. "I think it's wrong to just kill him like they did," said a neighbor, "because he wouldn't hurt a fly." Less than 48 hours later, members of a Broward County Sheriff's Office SWAT team and its Selective Enforcement Team in Pompano Beach, Florida, shot and killed Brenda Van Zweiten, 52, during a drug raid on her home. Police had developed evidence that drugs were being sold from the residence, and obtained a search warrant. After allegedly identifying themselves as police, they broke through a sliding glass door to a bedroom and arrested Van Zweiten's boyfriend, Gary Nunnemacher, 47, on charges of possessing less than 20 grams of marijuana. Van Zweiten was in a different bedroom, and was shot and killed by deputies when she emerged holding a handgun. According to police, she refused to put down her weapon, so they shot her. Police reported finding one gram of heroin, four grams of crack cocaine, marijuana, marijuana plants, 40 generic Xanax tablets, $550 cash, two shotguns, and a rifle. Family members said Van Zweiten had a prescription for Xanax, but was not a drug dealer. But police had earlier in the day arrested three people leaving the home who they say had bought drugs there -- although police did not say from whom. After Van Zweiten's killing, police were unrepentant. "When you approach a police officer with a loaded weapon and don't put the weapon down, there's going to be consequences," sheriff's spokesman Mike Jachles said. "It's unfortunate, but I'd rather be talking about a dead suspect than a dead cop." Van Zweiten's brother, Bill George, said his sister had recently received threats and was afraid of break-ins. "It was an unlawful shooting," he said. "She's 98 pounds. She was just trying to protect herself. I would come out of my room with a gun too." As news of Van Zweiten's death spread, friends, neighbors, and family members expressed dismay and disbelief. They called the incident a "set up" and said the blonde grandmother was affectionately called "Mom" by many who knew her for using her home as a neighborhood hangout to keep kids off the streets. Dozens of people gathered in her yard near a flower-bedecked cross put up as a memorial. "Look at these people," said George. "She helped so many of these young people." "She was like a second mom to me," said Michael Miller, 18. "She would take in anybody." "There was no reason for this," said son Rob Singleton, 32. Van Zwieten had no criminal history involving drugs or violence, state records show. George said that Van Zweiten had reason to fear intruders because she had been threatened recently by a man accused of stealing watches and rings that were part of a shrine to two of her four sons, who had died within the past three years, one in a traffic accident, one of a drug overdose. She had just installed an alarm system last week, George said. "She was scared." Singleton showed reporters inside the house, including the small bedroom where she was shot. A large puddle of blood remained on the floor, and the walls and ceiling were splattered with blood -- from his mother's head, he said. "She was probably running into the closet and trying to hide," he said. As is all too typical in such raid, police also totally trashed the house. As the Sun-Sentinel reported: "Much of the interior of the three-bedroom house looked as if it had been hit by a tornado... Drawers were pulled from dressers, clothes were scattered, a bed was overturned, food and crockery had been knocked from kitchen cabinets." The shrine to her dead sons was also destroyed, Singleton said. Two Broward County Sheriff's Office detectives are on administrative leave pending an internal investigation. They have not been named.

Everyone's talking about this wild story from New York City, in which two men spent 5 days in jail for a bag of coconut candy. The driver consented to a search of his vehicle and both men were arrested after police discovered what they believed was crack cocaine. An officer told the passenger to "shut up" when he insisted it was candy, and the men had to wait in jail for almost a week before lab tests proved their innocence.

In addition to demonstrating the combined arrogance, incompetence, and contempt for innocent people that so often characterizes drug war policing, the story also provides another glaring example of how consenting to police searches can instantly make a bad situation much worse. Pete Guither explains:

Lesson #1: Never, ever, ever, ever, agree to a search. If you’re guilty, you’re helping them catch you. If you’re innocent, you’re wasting your time, you’re taking a chance since they aren’t required to fix anything they break, you’re leaving yourself open for being charged for something you didn’t know about that fell out of a friend’s pocket, and you’ve got the possibility that a couple of morons will think your coconut candy is crack and throw you in jail for a week.

Whether or not refusal prevents the search is beside the point here (although, yes, refusal often prevents the search). Such cases are less likely to be prosecuted, even after evidence is discovered, due to the fact that police and prosecutors do – believe it or not – sometimes recognize a constitutional violation and decline to proceed simply because they don’t want to bring a messy case into the courtroom. Finally, consider how much more impressive a civil suit would look in this case with an illegal search thrown into the mix along with the already-compelling story of spending days in jail over coconut candy.

We'll never know how things would have turned out if these guys had refused the search, but there's no question what happened when they agreed to it.

The Ohio Supreme Court ruled Tuesday that police officers must obtain a search warrant before reviewing the contents of a suspect’s cell phone unless their safety is in danger. The ruling came on a narrow 5-4 vote of the justices. The ruling came in State v. Smith, in which Antwaun Smith was arrested on drug charges after answering a cell phone call from a crack cocaine user acting as a police informant. When Smith was arrested, officers took his cell phone and searched it without his consent or a search warrant. Smith was charged with cocaine possession, cocaine trafficking, tampering with evidence and two counts of possession of criminal tools. At trial, Smith argued that evidence derived through the cell phone search should be thrown out because the search violated the Fourth Amendment ban on unreasonable searches and seizures. But the trial judge, citing a 2007 federal court ruling that found a cell phone is similar to a closed container found on a defendant and thus subject to warrantless search, admitted the evidence. Smith was subsequently convicted on all charges and sentenced to 12 years in prison. Smith appealed, but lost on a 2-1 vote in the appeals court. In that decision, the dissenting judge cited a different federal court case that found that a cell phone is not a container. In the majority opinion Tuesday, state Supreme Court Justice Judith Ann Lanzinger wrote that the court did not agree with the appeals court and trial judge that a cell phone was a closed container. "We do not agree with this comparison, which ignores the unique nature of cell phones," Lanzinger wrote. "Objects falling under the banner of 'closed container' have traditionally been physical objects capable of holding other physical objects. ... Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container." "People keep their e-mail, text messages, personal and work schedules, pictures, and so much more on their cell phones," Craig Jaquith, Smith's attorney, said in a statement. "I can't imagine that any cell phone user in Ohio would want the police to have access to that sort of personal information without a warrant. Today, the Ohio Supreme Court properly brought the Fourth Amendment into the 21st century." But Greene County prosecutor Stephen Haller complained to the Associated Press that the high court had gone too far. "I'm disappointed with this razor-thin decision," Haller said. "The majority here has announced this broad, sweeping new Fourth Amendment rule that basically is at odds with decisions of other courts."