RIDDLE OF THE DAY:
When is a police search not a police search under the Fourth Amendment?
Ans: When it is conducted by a police dog!
Gotcha!
You thought that because the police conducted a search, it was a search.
But it wasn't a search, even though the person whose car-trunk they searched received 12 years in state prison for illegally possessing a considerable quantity of the non-medical kind of marijuana in the trunk of his car, which had been stopped for going 71 in a 65.
And you thought the law was the reasonable product of the rational mind.
You can read Linda Greenhouse's account, published Jan. 25, 2005, in the NYT, of the decision, issued Jan. 24, 2005, in Illinois v. Caballes, No. 03-923, here.
Say, you don't suppose the police stopped a guy for going six mph over the speed limit on a highway and sicced the dog on him was because he met some kind of a secret drug courier profile, do you?
If the driver was a white-haired, white dude who looked like Justice John Paul Stevens, who wrote the opinion, do you think this would have happened? Stevens might have been in a newer, better car.
Caballes's car might have looked like an uninsured special.
The Times report states:
The opinion suggested that a dog sniff was not a search at all because it detects only contraband and therefore cannot compromise a law-abiding person's privacy. "Official conduct that does not compromise any legitimate interest in privacy is not a search subject to the Fourth Amendment," Justice Stevens said. The analysis mirrored that of a decision in 1983 in which the court upheld the use of trained dogs to sniff luggage at airports.
Whoops!
Do you see something funny going on here?
Only law-abiding people have a legitimate interest in privacy?
I thought everybody had a legitimate interest in privacy. Hence the rule against unreasonable (bad) searches.
This is correct: If we behave lawfully, we have nothing to fear, therefore it is no invasion of privacy if the police kick in our door without probable cause or even reasonable suspicion and find contraband?
Isn't this getting away from the text of the Constitution? The original intent of the Framers?
No kicking in doors by Redcoats to find untaxed sugar and tea in the Colonies?
Didn't even sugar and tea smuggling Colonists, make that former colonists, have protection against police jack-boots after the adoption of the Bill of Rights in 1791? I'd thought they did. I guess I was wrong.
I'd been acting under the impression for some time that the Fourth Amendment protected "legitimate expectations of privacy in the area searched" (aka LEPAS), such as in our persons, papers, and effects, which, until the Fourth Amendment became shot so full of holes, it began to resemble French lace, included my car trunk.
I happen to think my car trunk is private.
If my kid borrowed the car to go to a party where he or some of his friends had been smoking a joint, while I wouldn't like that, I wouldn't want to be stopped for a moving violation and have my car searched because there were a few stray molecules of pot lingering about the vehicle, detectable by a trained dog the officer just happened to have nearby. Since I value my privacy, I don't think I can be made to give up my right because a dog alerts on my car.
But maybe I've lost my legitimate expectation, my constitutional rights because of what someone else did. I guess that happens a lot.
I know a young man in the U.S. Army Special Forces. He works constantly with high explosives and has a certain amount of explaining to do when he needs to board a commercial airplane to visit family, etc.
We have a rule that an illegal search cannot be legitimized by what it turns up.
Otherwise, all bad searches that produced contraband or evidence would be suddenly be good searches, and therefore admissible.
Then there would be no Fourth Amendment protection of people.
Mr. Caballes was recognized as having standing to squawk, but not standing to be protected by the guaranty, not because the search was held unreasonable, but because it was held not a search to begin with.
This is the sort of legalized hair-splitting that gives overly casuistic lawyers a very bad name.
We're not taking your rights away, sir, we're simply saying you never had a right in the first place, the way we interpret the Constitution, because you're not quite legitimate.
Justice Ruth Bader Ginsburg and Justice David Souter, the Republican appointed by a Republican (Bush-41) whom Republicans love to hate the most, dissented.
Here's the decision. Now I'll read it.
I think it's a good idea to think about an issue for yourself before reading what others have to say. This serves as a check on your own instincts, understandings, and legal reasoning.
You'll find out whether you tend to side with the majority, or the dissent, more often than not, whether you tend to side more with the police or the power of government, or more with individual liberty and the right to be let alone. It's no sin to be one or the other. Chief Justice, in his early years on the Court, was nick-named the Lone Ranger, because he was in dissent so often, particularly where the Court decided in favor of the individual versus the power of government. Later, as the Court changed and more conservatives were added, he found himself in the majority more often.
Since I served for seven years as a prosecuting attorney, and prosecuted a lot of marijuana cases in the late '60s, early '70s, I'm familiar with government and law enforcement perspectives. I've also served as a criminal defense attorney for three decades and have seen my share of government conduct that I wouldn't like to see repeated. While trying to avoid being a doctrinaire this or that, one eventually must draw a line and say, "This is right," or "This is wrong," because I believe it so.
Where would you draw the line?
Do only law-abiding people have a legitimate expectation of privacy in their vehicles?
Or do all people in America have a legitimate expectation of privacy?
Which is a better way to run a country as big and complex as ours?
Make everybody subject to search the moment they step out of their homes? Or just when they enter cars? Or airports? Or government buildings. Or only certain government buildings such as places where justice is dispensed or administered, such as courts and jails?
How about teenagers? They smoke some pot, I'm told. Search them and their lockers at school?
Government is the great teacher, Justice Brandeis said. What shall we teach our young people? That they have no rights against government intrusion? Or some powerful rights?
Do you think teenagers should have powerful rights as against teachers? The principal? The police?
Should they have less rights than you?
Should you have strong rights as against the government?
Are you willing to give up your rights in the interests of national security?
Female terrorists have been known to strap explosives to their bodies. Airport searchers need to touch women's bodies.
I know a young woman whose brother is serving in Iraq. She and her family are super-patriots by any definition. Criticism of the Bush Administration and the Patriot Act is unpatriotic in their eyes. She and her family have no objection to requiring travelers to undergo all sorts of intrusive searching in order to ferret out the terrorist.
Yet the young woman refuses to allow herself to go through the X-ray, make that the Gamma-ray machine at the airport, which reveals skeletal structure and devices strapped to the body. She doesn't want male attendants viewing the outlines of her attractive young flesh. This electronic undressing by strange young males offends her very strong sense of personal modesty, which is another word for privacy.
There is what you are willing to impose on others, and what you are willing to have imposed on yourself.
Normally, the Supreme Court is supposed to be aware of this, and I suppose it is. But I wonder how more highly attuned the justices would be if they were less protected by the police and more subject to being policed by the police.
I was driving on the freeway near the Hall of Justice in San Francisco as the passenger in a red sports car that was being piloted by a friend, a dedicated prosecutor for many years with whom I worked.
Suddenly a California Highway Patrol car behind us made an announcement to the red car to move aside. The CHP unit was in a hurry and needed our car to clear a space for the police car to pass.
My prosecutor friend became irate at being ordered around by the police. He was used to being the police authority, not being subjected to police authority. What he uttered in the privacy of his car was not something he would've wanted an officer to have heard, as he pulled out of the way and the CHP unit passed without further ado.
It's easy to deprive another of his rights, as long as you don't think you are depriving yourself at the same time.
I wonder whether the justices imagine themselves being the subject of police attention.
I bet they do.
People in Washington are so paranoid about having their offices and phones bugged that they have them swept regularly. Even paranoid people can be followed. Do you think that federal judges are immune from law enforcement surveillance?
A federal judge in San Francisco found himself spoken to by a friend who recorded or transmitted their conversation for the FBI, which later obtained the judge's indictment.
I don't know, but I'm willing to bet that the Supreme Court security service regularly sweeps the building for unauthorized devices.
Some bad people will take advantage of our privacy protections, such as terrorists, drug traffickers, and people who have recently committed a crime who still possess the tools, or the loot, or a body in the trunk. That's why police so often obtain search warrants in homicide cases before entering homes, or opening containers. A good homicide inspector can probably write a better search warrant affidavit than most deputy district attorneys. And then take it to the duty-judge's home at night to have the warrant signed and endorsed for night-time execution. THEN they can kick the door in.
Do you know what the cops, in the old days, of course, before the Constitution hit San Francisco, meant by a "San Francisco Search Warrant"? As in "I used a San Francisco Search Warrant..."
Shoe leather. It meant they kicked the door in without benefit of clergy. One famous detective (among DAs, for his warrantless, not to say reckless searches) searched every unit in a low-rent hotel looking for a culprit and his stash of drugs. Low-rent is the operative term. That couldn't happen at the Fairmont for some reason I can't quite put my finger on.
This does not mean that such searches were condoned by the DAs. We simply didn't prosecute such cases. The PC 1538.5 motion was newly in effect, carefully prescribing the procedure for the defense to move to suppress illegally seized evidence. The DA beat them to it, more often than not.
A good DA throws out more bad cases in a week than most defense attorneys succeed in doing in a very long time.
Okay, now I've read the opinion.
I agree with the dissents.
Justice Ginsburg notes the distinction between searches for drugs and searches to protect public safety. She'd allow greater intrusion in the interest of public safety from explosives, terrorists, etc..
Okay, I can live with that and might die without it.
Drugs?
We're living in an age of Prohibition, only we don't call it that. Drugs are like alcohol, only worse.
I won't go on.
We can't go on like this forever.
I''ve been reading T.R. Reid's "The United States of Europe." They lock up traffickers. They drive users to the hospital. A user is anyone with less than ten days worth of drugs. After that, you're a dealer. Hmmm....
Here a guy with a Marijuana plant growing in a pot (Is that where the name came from? I have no idea.) on the windowsill is a cultivator. The San Francisco Fire Department responded to a three-story home in the Sunset District the other day. The whole house was filled with grow-lights, a watering system, and marijuana plants. That's cultivation.
It turns out that the Illinois police officer who stopped the vehicle was apparently not making a pretext stop based on an alleged profile. He was writing the motorist, who had readily produced his DL, Reg., and proof of insurance, a warning ticket. Nuttin.' Then another officer, the one with the dog, rolled up. While the first officer was writing the warning ticket, No. 2 was walking the dog.
People sometimes make mistakes, but never a dog, right? Not in this case anyway.
The motorist has about ten to go.
How close he came to skating.
Another meat pattie for Officer Dawg.