Supreme Court Strikes Another Small Blow Against Exclusionary Rule
The Supreme Court handed down yet another bad 4th Amendment ruling today. I've got a post over at Flex Your Rights explaining, as I often do, that the 4th Amendment isn't dead yet.
Search and Seizure
Metro Threatens Flex Your Rights with Legal Action, ACLU Defends
Flex Your Rights' opposition to random searches on D.C. public transportation has finally pushed Metro officials over the edge. Whole story here.
Asserting Your Rights Doesn't Mean You're Getting Away With Something
Last week I posted Don't Consent to Police Searches or Answer Incriminating Questions in response to this story in which three men were arrested for marijuana after mindlessly consenting to a police search. A commenter responded with this (emphasis in original):
I agree that teaching people their rights isnât necessarily a direct path to drug policy reform, but I want to address the idea that my headline "encourages[s] the skirting of laws," which I think misses the point. In my work with Flex Your Rights, Iâve frequently encountered a false distinction in which asserting constitutional rights is considered honorable when one has nothing to hide, but is somehow perceived as disingenuous when the assertion of those rights prevents the discovery of criminal evidence. At worst, this argument takes the form of claiming that itâs an abuse of the constitution to refuse a search when one possesses marijuana, for example (thatâs not what the commenter above is saying, but itâs where that line of thinking often leads).
All of this is premised on the assumption that police are legally entitled to discover contraband and that youâre "getting away" with a crime if police procedures donât result in your arrest. Technically, however, there is no crime until police obtain probable cause for an arrest, thus any citizen who effectively asserts 4th and 5th Amendment rights is not getting away with anything. They are legally innocent, because evidence of guilt never emerged.
Thus, the whole point of understanding and asserting basic constitutional rights when confronted by police is that you are always innocent until proven guilty under the law. Asserting your rights can never be equated to "skirting the law," because these rights are the law.
As for the larger question of whether encouraging citizens to assert their rights is a bad message for reformers, I would insist that we have nothing to gain by remaining silent on this issue as our prisons are filled with naïve drug offenders who waived their rights on the side of the road. Flex Your Rights was formed to end that silence and weâve drawn remarkably little public criticism for these efforts, probably because our opposition recognizes that criticizing know-your-rights education comes perilously close to criticizing the constitution itself.
While I respect that you disagree with me, it's my personal opinion that headlines that encourage the skirting of laws are not going to be useful in influencing the citizens and legislators we need to help us change the laws.
I agree that teaching people their rights isnât necessarily a direct path to drug policy reform, but I want to address the idea that my headline "encourages[s] the skirting of laws," which I think misses the point. In my work with Flex Your Rights, Iâve frequently encountered a false distinction in which asserting constitutional rights is considered honorable when one has nothing to hide, but is somehow perceived as disingenuous when the assertion of those rights prevents the discovery of criminal evidence. At worst, this argument takes the form of claiming that itâs an abuse of the constitution to refuse a search when one possesses marijuana, for example (thatâs not what the commenter above is saying, but itâs where that line of thinking often leads).
All of this is premised on the assumption that police are legally entitled to discover contraband and that youâre "getting away" with a crime if police procedures donât result in your arrest. Technically, however, there is no crime until police obtain probable cause for an arrest, thus any citizen who effectively asserts 4th and 5th Amendment rights is not getting away with anything. They are legally innocent, because evidence of guilt never emerged.
Thus, the whole point of understanding and asserting basic constitutional rights when confronted by police is that you are always innocent until proven guilty under the law. Asserting your rights can never be equated to "skirting the law," because these rights are the law.
As for the larger question of whether encouraging citizens to assert their rights is a bad message for reformers, I would insist that we have nothing to gain by remaining silent on this issue as our prisons are filled with naïve drug offenders who waived their rights on the side of the road. Flex Your Rights was formed to end that silence and weâve drawn remarkably little public criticism for these efforts, probably because our opposition recognizes that criticizing know-your-rights education comes perilously close to criticizing the constitution itself.
Donât Consent to Police Searches or Answer Incriminating Questions
Hereâs the perfect illustration of how not to handle an encounter with police:
Of course, thereâs no guarantee that refusing the search will prevent it from happening, but it often will, and if police search you anyway, youâll at least have a shot at getting the evidence thrown out in court. Iâve discussed this exact issue with dozens of defense attorneys and the answer is always the same: if the suspect refused consent, the charges are frequently dropped.
I recently met a defense attorney from Kansas who called Flex Your Rights to order a copy of our video. Doing criminal defense in Kansas, this guy deals with traffic stop arrests all day every day. The drug war in Kansas is initiated on the highways and then fought out in court, and this lawyer is the guy you want to know if you get jammed up in a traffic stop. He said he gets very few clients who refused consent, and as a result a lot of his work involves negotiating plea bargains for drug cases. On the rare occasion that he gets someone who actually had the presence of mind to refuse the search, they walk. Heâs a badass and he knows how to annihilate improperly seized evidence.
Every case is different and police misconduct is a virus, but the bottom line is that giving consent will always destroy you if thereâs anything in the car. Itâs just that simple. Donât play their game.
WHEELING -- The Ohio County Sheriff's Department initiated a traffic stop early this morning at the Mount de Chantal Kroger.
After getting permission to search the vehicle, deputies found nearly a half a pound of marijuana, a digital scale, baggies and blunt wraps, along with some cash.
25-year-old Andre Smith of Wheeling, 20-year-old Jeff McGhee of Wheeling and 18-year-old George Oliver were arrested and taken to the Northern Regional Jail.
One of the suspects later admitted to deputies that the marijuana was purchased out-of-state, and he planned to sell it. [WTRF]
Of course, thereâs no guarantee that refusing the search will prevent it from happening, but it often will, and if police search you anyway, youâll at least have a shot at getting the evidence thrown out in court. Iâve discussed this exact issue with dozens of defense attorneys and the answer is always the same: if the suspect refused consent, the charges are frequently dropped.
I recently met a defense attorney from Kansas who called Flex Your Rights to order a copy of our video. Doing criminal defense in Kansas, this guy deals with traffic stop arrests all day every day. The drug war in Kansas is initiated on the highways and then fought out in court, and this lawyer is the guy you want to know if you get jammed up in a traffic stop. He said he gets very few clients who refused consent, and as a result a lot of his work involves negotiating plea bargains for drug cases. On the rare occasion that he gets someone who actually had the presence of mind to refuse the search, they walk. Heâs a badass and he knows how to annihilate improperly seized evidence.
Every case is different and police misconduct is a virus, but the bottom line is that giving consent will always destroy you if thereâs anything in the car. Itâs just that simple. Donât play their game.
Washington Times Attacks Flex Your Rights
FYR's response to the new random search program on public transportation in DC is continuing to generate media hits, including a negative reaction to our work in The Washington Times. ??
The editorial includes factual errors regarding the breadth of the program (amazingly, they didnât know it includes bus stops) and even accuses Flex Your Rights of endangering public safety. It's revealing that our only opposition got the facts completely wrong. Fortunately, Washington Times published my reply today. Check it out.
Itâs not everyday that I get accused of endangering everyone in DC, so you can imagine how amused I am by all of this.
The editorial includes factual errors regarding the breadth of the program (amazingly, they didnât know it includes bus stops) and even accuses Flex Your Rights of endangering public safety. It's revealing that our only opposition got the facts completely wrong. Fortunately, Washington Times published my reply today. Check it out.
Itâs not everyday that I get accused of endangering everyone in DC, so you can imagine how amused I am by all of this.
Flex Your Rights Protests Random Searches in D.C.
{Cross-posted from Flex Your Rights}
On Wednesday, Flex Your Rights brought together numerous allies, volunteers and friends to protest random searches on public transportation in the Nationâs Capital. The effort was aimed at voicing opposition to the new search policy, while educating the public about the 4th Amendment right to refuse police searches.
The event generated considerable media attention, including the Washington Post, the Washington CityPaper, and local ABC and NBC affiliates:
Thanks so much to our friends at the Electronic Privacy Information Center, Law Enforcement Against Prohibition, StoptheDrugWar.org, Students for Sensible Drug Policy, and all the volunteers who came out and made this effort a success.
The constant emergence of new threats to our civil liberties is a difficult thing for any freedom-loving citizen to behold, but this unfortunate event also provided a unique opportunity to educate the public about 4th Amendment rights, and thatâs exactly what we did.
Random Searches in Our Nationâs Capital
Iâve got a post at Flex Your Rights about a new random search program that will supposedly protect Washington, DCâs public transit system from terrorism. Of course, anyone found with contraband will be arrested, and you can bet theyâll be finding a lot more bongs than bombs.
As many of you know, I donât buy into that defeatist "4th Amendment is dead" hyperbole, because that mentality leads people to surrender and start waiving their rights. The greatest threat to the 4th Amendment is the widespread misconception that itâs no longer worth understanding and asserting our rights. People who know their rights get better outcomes during police encounters and that remains true despite anything and everything the wars on drugs and terror have done to undermine our basic freedoms.
So we put together The Citizenâs Guide to Refusing DC Metro Searches. If you live in the DC area, or plan on visiting sometime, youâll want to check this out.
As many of you know, I donât buy into that defeatist "4th Amendment is dead" hyperbole, because that mentality leads people to surrender and start waiving their rights. The greatest threat to the 4th Amendment is the widespread misconception that itâs no longer worth understanding and asserting our rights. People who know their rights get better outcomes during police encounters and that remains true despite anything and everything the wars on drugs and terror have done to undermine our basic freedoms.
So we put together The Citizenâs Guide to Refusing DC Metro Searches. If you live in the DC area, or plan on visiting sometime, youâll want to check this out.
Happy Constitution Day!
In honor of Constitution Day, Pete Guither has some sarcastic observations regarding how tragically far removed we are from the freedoms promised us in that great document. Itâs true, but I also think itâs terribly important that we understand how to use the rights we still have. So I thought everyone would enjoy these 4th Amendment success stories Iâve been compiling over at Flex Your Rights:
I was driving from New York to D.C., and I was pulled over going through Baltimore. The officer asked if I knew why he pulled me over. Having recently seen Busted, I made it a point to say, "I don't know," instead of "speeding." He said he wasn't going to write me a ticket, but wanted to search the car because they "were seeing a lot of drugs going through the area." I told him I was in a hurry and really didn't feel it was necessary. He tried to get all buddy-buddy and make it seem like I should "just help him out." He said his boss really wanted them to be checking cars, so he'd "really appreciate it." At this point, I said I did not wish to consent to a search and asked if I was free to go. He said "yes" and I drove off.You can read many more of these here.
Mason T.
Denver, CO
We had a Know Your Rights training (and showed Busted) for the American Indian Community at the IndianWorks community center. One woman who attended told us that her son and his friends were being harassed by a police officer assigned to his high school. The officer stopped them repeatedly when they hung out after school and constantly demanded to search their bags. Although her son was not at the training, she was eager to show him the information and she went home and ordered Busted off the website.
She called a month later to say that when the officer stopped her son and his friends as they walked home from school and demanded to search their backpacks, her son said, "Officer, am I being detained or am I free to go and I do not consent to a search" all in one sentence. The cop turned red in the face but returned to his squad car, sped off and has not bothered them since. With such great results, the mom has been showing Busted to all of the neighborhood youth.
Michelle G,
Minneapolis, MN
Just two days ago I had an unfortunate run-in with the police. They were already in my house, to respond to an emergency that my friend was having. Due to the nature of his emergency, they requested a search of my house. Immediately, everything from Busted came rushing back. I think the only things I said (and repeated) were "I do not consent to a search", "Are we free to go to the hospital now?" and "I think I need to contact my lawyer." When I said "lawyer" the cop backed off. But I just couldn't believe how astounded he was that I refused the search. He insisted that it meant I had something to hide over and over. And, too, the use of silence really came in handy. I have never been in a situation like that before, especially with the cops already inside my house. So, thanks for Busted. That truly saved me. It was the only thing I thought of the entire interrogation. Things could have turned out differently otherwise.
Stephanie H.
Don't Give Your Marijuana to the Police
This remarkable New York Times piece exposes New York City's out of control marijuana policy, which has produced 374,900 misdemeanor marijuana arrests since 1998, despite a decrim law that's been in effect for 30 years. This is a rare example of professional-quality drug war coverage from the mainstream media and should be read in its entirety, as it raises several interesting issues.
I found this passage, which describes one particular arrest, quite revealing:
"I came out of the building, and this unmarked car, no light, no indication it was police, was right on me," said the man, a Latino who asked that his name not be used because he was concerned about his job. "Right on my tail. An officer got out, he said, 'I saw you walking from that building, I know you bought weed, give me the weed.' He made it an option: 'Give me the weed now and I will give you a summons, or we can search your vehicle and can take you in.' "He opened the console and handed them his marijuana â making it "open to public view."
"I was duped," he said. But the deception was legal, and his pot wasnât.
The officers escorted him in handcuffs to the unmarked car.
Amazingly, police must actually trick citizens into displaying their marijuana in order to make an arrest, since the decrim law requires plain view discovery. NYPD officers have become quite adept at initiating this through the typical threats and coercion that have long been the hallmark of petty drug war police practices.
Fortunately, the most obvious and effective antidote to New York's overzealous marijuana policing is really pretty simple: don't give them your marijuana. Don't admit having marijuana. Don't give them consent to search you or your vehicle. Ask if you're free to go.
Ending this obscene spectacle, which violates the spirit of New York's marijuana laws and wastes precious law-enforcement resources, is vitally important. But until that happens, citizens can protect themselves by not idiotically turning over their illegal drugs to the police. Seriously, stop giving them your drugs.
Virginia v. Moore: Just Another Dumb Ruling, Not a Full-blown 4th Amendment Crisis
Yesterday's Supreme Court decision in Virginia v. Moore upheld the use of evidence seized during arrests that are illegal under state law. So now the whole "4th Amendment is Dead" choir is harmonizing again, this time about how police can now illegally arrest and search anyone anytime. But it ain't like that, not yet. My analysis is available here.
I hate a bad search and seizure ruling as much as anyone, but I'm also the associate director of Flex Your Rights, where we teach people how to exercise their rights during police encounters. That mission is challenging enough without well-meaning Bill of Rights enthusiasts issuing hyperbolic eulogies for the 4th Amendment every 3-6 months.
We face grave threats to our civil liberties, but ranking high among them is the fact that most of us don't have a clue what these rights are to begin with. Exaggerating the practical impact of bad rulings and legislation may feel like a strategy to get the public's attention, but it's not. That language merely serves to convince people that the battle is already lost and not worth fighting. It also exacerbates the widespread and tragic tendency of the majority of citizens to waive their constitutional rights whenever police ask them to.
That's why we defend constitutional rights by teaching people to assert them, instead of running around pronouncing to our friends and neighbors that they have no rights.
I hate a bad search and seizure ruling as much as anyone, but I'm also the associate director of Flex Your Rights, where we teach people how to exercise their rights during police encounters. That mission is challenging enough without well-meaning Bill of Rights enthusiasts issuing hyperbolic eulogies for the 4th Amendment every 3-6 months.
We face grave threats to our civil liberties, but ranking high among them is the fact that most of us don't have a clue what these rights are to begin with. Exaggerating the practical impact of bad rulings and legislation may feel like a strategy to get the public's attention, but it's not. That language merely serves to convince people that the battle is already lost and not worth fighting. It also exacerbates the widespread and tragic tendency of the majority of citizens to waive their constitutional rights whenever police ask them to.
That's why we defend constitutional rights by teaching people to assert them, instead of running around pronouncing to our friends and neighbors that they have no rights.