Search and Seizure

Check out the brand new redesigned Flex Your Rights website, which is so filled with delicious know-your-rights info and advice that it might even make you wanna go out looking for trouble. Of course, the point is not to embolden you (being cocky is a huge mistake), but rather to provide answers that aren’t available elsewhere and help people heal just a little from the pressure and confusion of living in a nation that jails more of its citizens than any other.

So please take a look and share it with friends and family. This is your first -- and sometimes only -- line of defense.

The Texas district attorney accused of participating in an egregious asset forfeiture scheme in the East Texas town of Tenaha now wants to use the very cash seized to pay for her legal defense in a federal civil rights lawsuit filed by victims of the practice. The ACLU of Texas, which, along with the national ACLU, is representing the plaintiffs in the case, filed a brief last Friday with the Texas Attorney General's office seeking to block her from doing so. Lynda Russell is the district attorney in Shelby County, where Tenaha is located. She is accused of participating in a scheme where Tenaha police pulled over mostly African-American motorists without cause, asked them if they were carrying cash, and if they were, threaten them with being immediately jailed for money laundering or other serious crimes unless they signed over their money to authorities. Representing a number of victims, attorneys from the ACLU of Texas and the ACLU Racial Justice Project filed a civil lawsuit in federal court in June 2008. According to the suit, more than 140 people, almost all of whom were African-American, turned over their assets to police without cause and under duress between June 2006 and June 2008. If a federal judge agrees that assets were in fact illegally seized, they should be returned to their rightful owners, whose civil rights were violated. In one case, a mixed race couple, Jennifer Boatwright and Ronald Henderson, were stopped by a Tenaha police officer in April 2007. According to the lawsuit, they were stopped without cause, detained for some time without cause, and asked if they were carrying any cash. When they admitted they had slightly more than $6,000, a district attorney's investigator then seized it, threatening them with arrest for money laundering and the loss of their children if they refused to sign off. There was never any evidence they had committed a crime, and they were never charged with a crime. The town mayor, the DA, the DA's investigator, the town marshal, and a town constable are all named in the lawsuit. While they claim to have acted legally under Texas asset forfeiture law, the lawsuit argues that "although they were taken under color of state law, their actions constitute abuse of authority." The suit argues that the racially discriminatory pattern of stops and searches violated both the Fourth Amendment proscription of warrantless searches and the Fourteenth Amendment's due process clause. While either the county or the state would normally be expected to pony up for the DA's legal expenses for a lawsuit filed as a result of her performance of her duties, neither has done so. That's why Russell—with a tin ear for irony—requested that she be allowed to use the allegedly illegally seized money stolen from motorists. She has asked the state attorney general's office for an opinion on whether using the funds for her defense violates the state's asset forfeiture law. "It would be completely inappropriate for the district attorney to use assets which are the very subject of litigation charging her with participating in allegedly illegal activity to defend herself against these charges," said Lisa Graybill, legal director at the ACLU of Texas. "Texas has a long history of having its law enforcement officials unconstitutionally target racial minorities in the flawed and failed war on drugs and it is of paramount importance that those officials be held accountable." "The government must account for the misconduct of officials who operate in its name," said Vanita Gupta, staff attorney with the ACLU Racial Justice Program, who represented African-American residents of Tulia, TX in high-profile litigation challenging their wrongful convictions on drug charges. "The state of Texas has seen egregious examples of racial profiling that result from poor oversight of criminal justice officials." The ACLU of Texas is using the Tenaha case to push for asset forfeiture reform in the Lone Star State. One such bill stalled in the state legislature this year. "The misuse of asset forfeiture laws by local officials is exacerbated by inadequate oversight," said Matt Simpson, policy strategist for the group. "The legislature must squarely address these reported civil rights violations via reform of forfeiture laws that strengthen protection against unconstitutional conduct and racial profiling."

I hate how easy it is to find new and insane stories of drug war villainy each and every day. Today's episode comes to us by way of Detroit, where a couple young drug cops have become known as the "Booty Boys" due to their thorough approach when searching drug suspects:

Two Detroit cops dogged by accusations of illegal body cavity searches during various traffic stops in 2006 are finally getting their day in court.
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A civil trial is under way in which Terence Hopkins of Highland Park says he was groped by the officers known on the streets of southwest Detroit as the "Booty Boys."
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Two other men who sued the cops on similar allegations, Elvis Ware and Marcus Wrack, are expected to testify on Hopkins’ behalf. Both men received small settlements from the city.

The officers have been the focus of eight lawsuits claiming such searches filed by 10 men in U.S. District and Wayne County Circuit courts in Detroit.

Two men, Byron Ogletree and Marjjo Clyburn, with similar allegations against the officers, received payouts from the city two years ago of $349,000 each without filing a lawsuit. [Detroit Free Press]

The officers claim it's all just a conspiracy, but it sure sounds like a lot of different people have the same beef with them. I don't know these cops, but I know the drug war, which makes me a sympathetic audience for claims of excessive anal cavity searches.

This is what happens when you tell police their top priority is to catch people in possession of tiny objects. It's bad enough that our stupid drug laws would ever lead people to hide drugs in their butt. But when police actually begin operating under that assumption, that's just a nightmare for everybody.

Now that the cops' faces are in the paper, I wonder how many more victims will come forward. Moreover, I wonder how many more headlines like this it will take to convince the American public that modern drug enforcement is inherently abusive and disgusting. We've created a monster and there's just no limit whatsoever to the perversion that it unleashes on our streets every hour of the day. As long as these laws exist, as long as police are incentivized to do these unbelievable things, no one will be safe.

Many of our readers are familiar with the widely-viewed film Busted: The Citizen's Guide to Surviving Police Encounters, produced by the organization Flex Your Rights. The next Flex movie, 10 Rules for Dealing with Police, is set to come out before the end of the year. Filming took place in Baltimore a couple of weeks ago, and it is now in editing. Click here to check out photos; it really is looking pretty nice. narrated by the famous attorney William "Billy" H. Murphy, Jr.

In a 2-1 decision last Friday, the Alberta Court of Appeals ruled that Calgary police violated Canadian privacy protections when they persuaded a utility company to attach a device to create a record of electricity usage in a home where they suspected marijuana was being grown. The case is Crown vs. Gomboc. Daniel James Gomboc was arrested and convicted of marijuana cultivation after Calgary police on another call noticed his home showed signs that a marijuana grow was taking place. After spotting suggestive evidence, Calgary police then went to the utility provider Enmax without a warrant and persuaded it to attach a digital recording amp-meter (DRA) to Gomboc's home. The meter monitored Gomboc's power usage for five days, and police used the results to obtain the search warrant that resulted in his arrest and subsequent conviction. Gomboc appealed his conviction, arguing that the warrantless use of the DRA violated his privacy rights under the Charter of Rights and Freedoms. The Alberta appeals court agreed, overturning his conviction and ordering a new trial. That new trial will take place without any of the evidence seized under the search warrant based on the DRA information. "It has been famously said that 'the state has no business in the bedrooms of the nation,'" wrote Justice Peter Martin. "The actual prohibition is much broader: in our society, absent exigent circumstances, the state has no business in the homes of the nation without invitation or judicial authorization." Martin added that the expectation of privacy extends beyond the simple information-gathering on the timing and amount of electricity used to the behavior of utility companies. "It is also objectively reasonable to expect that the utility would not be co-opted by the police to gather additional information of interest only to police," wrote Martin. "Indeed, I expect that the reasonable, informed citizen would be gravely concerned, and would object to the state being allowed to use a utility to spy on a homeowner in this way." The decision could be a precedent that will lead to more reversals, Gomboc's attorney, Charlie Stewart, told the Calgary Herald. "It's interesting to think of all the people who have pleaded guilty or been convicted under these circumstances," said Stewart. "It's a question of the legitimacy of the search."

Following the Supreme Court's recent decision that school officials violated the 4th Amendment when they strip-searched a 13-year-old girl, another similar lawsuit has been filed and the story is equally sickening:

According to the complaint, the incident began when the bus arrived at the school and two employees boarded it in order to resolve a dispute in which the girls were not involved. The employees "smelled what they thought was marijuana," the complaint states, and five girls seated at the back of the bus, including Gaither and S.C., were detained and searched.
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During an interrogation that lasted the entire school day, and after being denied repeated requests to call their parents, the girls were required to "remove their shoes and socks, unbuckle their belts, unbutton their pants, and unzip their pants," the complaint says. They also had their "waistlines physically touched and searched" by a male employee while their pants were undone, and were made to "lift up their bras while their shirts remained on and jump up and down."

The searches were all performed behind closed doors and without the presence of police offices or female staff, the suit says. No marijuana was found. [Courthouse News]

The whole thing is so perverse and disturbing, it really ought to be examined in criminal court as well as civil. By the time a group of teenage girls was ordered lift their bras and hop up and down, it wasn't just a drug search anymore. This was something much sicker than that. But you can thank decades of propaganda-fueled marijuana hysteria for creating the environment in which school officials think they can get away with stuff like this.

Today, the Supreme Court ruled 8-1 in Safford Unified School District #1 et al v. Redding that school officials violated the 4th Amendment when they strip-searched a 13-year-old girl.  Savana Redding was subjected to a strip-search that included looking inside her underwear, after school officials received a tip that she might be in possession of prescription Ibuprofen. None was found.

By a strong majority, the Court declared the search unreasonable under the 4th Amendment, finding that a full strip search was unjustified based on the nature of the drugs and in question and the absence of specific evidence that contraband would be found in her underwear.

Unfortunately, despite upholding the 4th Amendment in this case, the Court left the door wide open for future violations of student rights. The justices agreed by a 7-2 vote that the school officials who carried out the illegal search should not be held liable because the caselaw was unclear at the time. Now that the central legal issues are settled, similar incidents could invoke liability in the future, but the ruling itself will fail to prohibit such searches in many instances. By placing heavy emphasis on the negligible threat posed by prescription Ibuprofen, the Court implies that a different outcome may have been reached depending on the type of contraband in question. It's possible, for example, that the search would have been upheld if it involved marijuana.

Thus, today's ruling fails to fully clarify the legality of drug searches in schools under many circumstances. It also fails to punish those responsible for degrading an innocent young woman based on flimsy and ultimately false evidence. Hopefully, however, it will at least serve as a reminder to educators that schools are not a 4th Amendment-free zone.

At age 13, Savana Redding was strip-searched by school officials who suspected her of possessing prescription Ibuprofen. It turned out their information was bad, but they are so proud of what they did that they've defended their actions all the way to the U.S. Supreme Court. Soon, the right to drug-search young girls' underpants may be firmly enshrined in our jurisprudence, so that the whims of drug hysteria will decide when it's appropriate to do that, rather than some old list of high-minded legal principles.

That this incident even happened is disturbing enough before one tries to come to terms with the fact that the Supreme Court appears likely to uphold the search. Perverts.

I've posted a couple new items in the Flex Your Rights blog recently that are worth checking out. We've got an awesome site upgrade coming out soon, so I'm trying to get back into the habit of doing at least a couple posts a week.

The focus is on 4th Amendment and police misconduct issues rather than drug policy specifically, but I'd love to see some of you commenting over there if you're interested.