Tag Archives: fourth amendment

Crime Control vs. Expanding Police Power: The Supreme Court’s decision in Utah v. Strieff

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Craig Curtis, Bradley University

Michael C. Gizzi, Illinois State University


The Supreme Court’s recently ended term only had a few search and seizure cases, but the decision in Utah v. Strieff provides evidence of the continuing power of the crime control narrative on the Court, and involves one of the central issues explored in The Fourth Amendment in Flux, namely, the evolution or devolution of the exclusionary rule in a jurisprudence of crime control. The case openly forgives police misconduct, by exaggerating the social costs of excluding evidence, and creating yet another rationale for permitting illegal police activity to go unchallenged.

In this case, Edward Strieff was subject to what the lower courts conceded was an illegal Terry stop, lacking reasonable suspicion. After the stop, the officer learned that Strieff had an outstanding warrant for his arrest. Strieff was arrested and searched incident to that arrest, and incriminating evidence was found. The question is whether that evidence is tainted by the illegality of the Terry stop. Does the “fruit of the poisonous tree” doctrine apply, or does the intervening act of discovering the existence of a warrant preclude the use of the exclusionary rule.

In 5-3 decision, Justice Thomas held that the existence of the warrant was sufficient to “break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.” Justice Sotomayor wrote a stinging dissent, exposing how the Court was diminishing Fourth Amendment rights.   Her words are worth quoting at length:

This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. … If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.

While the Court in Strieff makes concessions for the need for police discretion to protect public safety, Justice Sotomayor really illustrates what is at stake for the future. Allowing an illegal stop to stand just because of the happy accident of the existence of an outstanding warrant rewards police misconduct, rather than deterring it. What this case does is demonstrate that the jurisprudence of crime control remains deeply embedded in the minds of many justices, and the majority of justices, refuse to acknowledge, as Justice Sotomayor does, the threat that this approach presents for constitutional civil rights and liberties.   The Fourth Amendment is certainly still in flux, but the jurisprudence of crime control remains the dominant paradigm.


Hot off the Presses: The Fourth Amendment in Flux

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Very excited to have received an advance copy of my new book, The Fourth Amendment in Flux: The Roberts Court, Crime Control, and Digital Privacy just published by the University Press of Kansas.   UPK is one of the top publishers in political science, and seeing the book in print is very cool.      The book was the culmination of ten years of study of the Fourth Amendment, and two years of research trips to the Library of Congress.   The book should be available on Amazon on May 24th.

Here is a basic description:

When the Founders penned the Fourth Amendment to the Constitution, it was not difficult to identify the “persons, houses, papers, and effects” they meant to protect; nor was it hard to understand what “unreasonable searches and seizures” were. The Fourth Amendment was intended to stop the use of general warrants and writs of assistance and applied primarily to protect the home. Flash forward to a time of digital devices, automobiles, the war on drugs, and a Supreme Court dominated by several decades of the jurisprudence of crime control, and the legal meaning of everything from “effects” to “seizures” has dramatically changed. Michael C. Gizzi and R. Craig Curtis make sense of these changes in The Fourth Amendment in Flux. The book traces the development and application of search and seizure law and jurisprudence over time, with particular emphasis on decisions of the Roberts Court. IMG_4537

Cell phones, GPS tracking devices, drones, wiretaps, the Patriot Act, constantly changing technology, and a political culture that emphasizes crime control create new challenges for Fourth Amendment interpretation and jurisprudence. This work exposes the tensions caused by attempts to apply pretechnological legal doctrine to modern problems of digital privacy. In their analysis of the Roberts Court’s relevant decisions, Gizzi and Curtis document the different approaches to the law that have been applied by the justices since the Obama nominees took their seats on the court. Their account, combining law, political science, and history, provides insight into the courts small group dynamics, and traces changes regarding search and seizure law in the opinions of one of its longest serving members, Justice Antonin Scalia.

“A significant contribution to the literature on Fourth Amendment jurisprudence that is written clearly and concisely. It should be read by legal scholars and students, and anyone with an interest in how law enforcement interests collide with the privacy rights of citizens.”

—Craig Hemmens, Chair and Professor, Department of Criminal Justice and Criminology, Washington State University

The Fourth Amendment in Fluxis an excellent book for political science, pre-law and criminal justice students.”

—Michael Palmiotto, Professor of Criminal Justice, Wichita State University

At a time when issues of privacy are increasingly complicated by technological advances, this overview and analysis of Fourth Amendment law is especially welcome—an invaluable resource as we address the enduring question of how to balance freedom against security in the context of the challenges of the twenty-first century.

Traffic Safety and Investigatory Stops: Sources of Mistrust and Racial Disparity

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The following is the text of my presentation to the College of Applied Science and Technology Spring Meeting as the Outstanding Researcher for 2014-2015.  

April 28, 2015

Thank you.  I promise to keep this brief.   In deciding what parts of my research to focus on in my talk, I didn’t really have any clue of how relevant what I chose was, given what is now happening in Baltimore.   While I am not talking today about the use of force, I am going to talk about how traffic stops and vehicle searches are used in the war on drugs, and how the primary strategy utilized, what I call pretextual or investigatory stops, are racially disparate, and result in deep-seated mistrust by minority populations.

Since the early 1970s crime control efforts in America have focused on what Ronald Reagan and George Bush later termed “the war on drugs,” And since the 1980s, federal law enforcement agencies have widely promoted the use of traffic stops as one of the primary ways of fighting that war.   Because every time we get into our car, we violate some aspect of the traffic code.  Whether it is speeding, or failing to signal properly, or having a broken license plate light (which you can’t see of course), or driving in the left lane of the highway for a half-mile, ANY TIME you get in your car you are at the mercy of the police, who in their vast discretion can stop you, IF THEY CHOOSE TO.   In fact, the late Bill Stuntz, probably the leading expert in the world on criminal procedure once said, “there is no rule of law on the road — there is just the rule of official discretion.”

The Supreme Court has enabled the use of traffic stops as a way of fighting the war on drugs, by providing what I call a “constitutional toolbox” of legal doctrines that expand police power.   Police can stop anyone for any reason as long as they have objective probable cause of a traffic violation.  Their underlying motivation does not matter.  The traffic stop can be a pretext to a criminal investigation, and the Court is ok with that.  Police can arrest for any reason, including fine-only misdemeanor offenses;  if they arrest, they can search the arrestees person and the passenger compartment of their vehicle, without a warrant, as long as it is reasonable to believe that evidence of the crime of arrest would be found.  Police can bring out a K9 to do a narcotics sniff at any traffic stop, without having ANY suspicion.    They can impound a car, and then do an inventory search.  They can ask provoking questions to gain consent to do a search.   The toolbox is expansive.

But in thinking about vehicle stops, it is important to recognize that not all stops are equal.  Charles Epp and his co-authors in their book Pulled Over: How Police Stops Define Race and Citizenship argue that we need to contrast legitimate traffic safety stops from investigatory stops.  The former includes those stops that represent true traffic safety issues.  You know — when you are driving 12 miles over the limit down Gregory, and get busted by the Normal PD.  That is a legitimate traffic safety stop.  AND the people who get stopped, while annoyed, usually “own it” – “yup, I was speeding.”

Survey data suggests that this perception holds true for both Whites and Blacks.    But when we are talking about investigatory stops, we are talking about the use of those extremely minor traffic violations as the reason for the stop.  You know –  the license plate light, mud on the license plate, the ISU parking tag in your windshield, weaving in the same lane.    These are pretextual stops.  When you are stopped not for failing to signal a turn, but for failing to signal 100 feet in advance of a turn, that is a pretextual stops.  These are stops that are the starting point for a criminal investigation.   And what we find is that these types of stops occur far often to minorities (and in college towns, for young people) than to White people.

So here is what happens.  The officer has a hunch – or maybe he profiles a vehicle – or maybe he sees a young Black man in a vehicle, or a group of them, and so he looks for a reason to stop the car.  He makes the stop.   And then either makes an arrest for a minor offense, or he brings out the dog, or seeks consent to do a search.  All with the goal of netting contraband and making a bigger arrest.

If he wants consent, the officer will often use leading questions, designed to throw the driver off kilter, and to manipulate them into giving consent.  For example. “Is there anything on you that I need to know about?  Any guns, drugs, knifes, anything crazy that’s gunna blow me and my partner up?”   Yes, officer, I am a suicide bomber in training.     I’ve heard examples of people being asked “any crack pipes, bongs, or grenades?”    All of this is to get you to say “OF COURSE NOT”  and then when he asks the 64,000 dollar question:  “So you don’t mind if I take a look?” It puts you into the position of agreeing – so not to raise suspicion.  After all, you just said you didn’t have anything on you.   And just like that POOF — you have waived your Fourth Amendment rights.

As I said, these tactics are widespread.  They appear in training manuals,  the DEA has instructed thousands of cops in their use,  They are institutionalized practice, and police leaders know full well that they primarily target minorities.   And that there is racial disparity in these stops. It might have started as efforts to interdict drug couriers, but it has now become ingrained into the very core of policing.  They are institutionalized practice.

The problem with these stops is that they don’t occur for all of us.  Most white people – outside the age group of 18-25 NEVER experience them.  White adults are almost never asked if they have a grenade on them.  BUT Black people and Latinos – and all minorities — experience these stops over and over and over.  They are paper cuts, again and again.   And they are the primary reason Black people feel a lack of trust towards the police.   But White people rarely experience these stops.  When they get stopped they get a ticket or a warning and are done.   Yet the process is only beginning for Black people.  BUT why stop minorities and not White people?  Is it implicit racial bias?  Probably some.  Do they fit profiles?  Sometimes.  Is it perceptions about criminality? (perhaps, but  the result of stops show they are more likely to find contraband when they stop whites).   Are Black people more likely to be criminals?  Well from drug surveys we know that Whites and Blacks use drugs at the same rates.  We know they sell drugs at the same rates.  BUT Whites sell to friends and family behind closed doors, while Blacks sell to strangers in open-air markets.   So, it is certainly easier to go after Blacks.  AND if the total number of arrests is what all that matter, then do what is easy.

My research involves investigating these stops.  Thanks to concerns about racial profiling, the State of Illinois has mandated that every traffic stop in the state be logged.  And today there is ten year’s of data on traffic stops, approximately 15 million observations, 1.2 million alone from 2013.   The state uses estimated minority driving populations to calculate “racial profiling ratios” and to be able to say that Normal PD is 1.5 times as likely to stop Blacks as it is to stop Whites.   But those estimates have limitations.  It is hard to tell exactly how many White People and how many Minorities drive in a jurisdiction.  The data also is limited by under-reporting and lack of compliance by some agencies. But the data is still valuable, and I have begun using it to look more closely at what it can teach us.    For today’s presentation I created a subset of 2013 data, consisting of all stops in Bloomington-Normal by the Normal PD, Bloomington PD, ISU PD, and McLean County Sheriff.  About 26,000 stops.   Broken down into stops for moving violations (things including, but not limited to speeding):  16,005.   Equipment violations (7,139)  – these include a long laundry list of possible violations;  And license plate and registration issues (2,888).

I looked at the reason for the stop by Race.  I used just White and Black, as the relative number of other minorities are small, and the data for Latinos is often inaccurate because the determination of race is done by the officer.  And what we see is that Whites are more likely to be stopped for Moving Violations (the primary category for traffic safety stops, although this includes several pretextual ones as well), and Blacks more likely to be stopped for equipment and license plate violations.  The latter two categories are more closely associated with investigatory stops.   For moving violations, 60% of Whites were stopped for speeding, compared to only 42% of Blacks. Yet, lane violations and traffic sign and signal violations are disproportionately experienced by Black drivers.

I created two measures attempting to capture investigatory stops.  The most conservative of which was to just take any case where the driver was asked to consent to a search of his person, or his vehicle,  OR if a K9 was brought out.   By definition if the officers wants to search, he investigating something beyond a traffic offense.  Using this crude measure, I found that only 4% of Whites in BloNo experienced these, but almost 10 percent of Blacks did.  If we remove people under the age of 25, that number drops to 2.5% for Whites. It is not until Blacks reach 60 years old where they are equally likely to be subjected to a request for a search.  60 years old.    A second less conservative indicator was created by adding in stops for license plate and tag violations.   Here it went up to 14 percent for Whites, but almost 23 percent for Blacks, an 8 percent difference.    DO minorities experience investigatory stops more often in Bloomington-Normal?  Yes.  Is Bloomington-Normal Ferguson or Baltimore?  No.   But these disparities are real.  And they are the direct result of deliberate, institutionalized practice and training.

Finally, I looked at the result of stops.  Do people get citations or warnings?  What I found was a virtual 50/50 split, BUT with huge differences by agency.  Bloomington and ISU PD give warnings in more than 2/3 of cases.   The Sheriff gives warnings in 58%.  BUT here in Normal, 2/3 of drivers get tickets.   No surprise there.  I did find something interesting,  in Bloomington-Normal, Whites are more likely than Blacks, to get citations — with the strange exception of ISU, which cites Blacks at a 8% higher rate.

That is a teaser of a much larger project.  I am working with two talented graduate students to examine traffic stops in university communities, and trying to explain why ISU PD has such a high minority Black to White ratio, even though it is one of the most progressive agencies around. I am beginning a broader examination of traffic safety stops vs investigatory stops, using multivariate methods, and looking at data from several states, and I am also using the Illinois data to  explore the judicial impact of recent decisions by looking for evidence in changes in police practices after court decisions are handed down.
Thank you.

What to make of oral argument in the cell phone case

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Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

The importance of a warrant

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The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that

sometimes, like me or any other human being, a policeman can get a little carried away. So if, in fact, he does show the warrant, that there is this basis, you issue the warrant. Many, many and if he doesn’t you don’t. It isn’t because they’re difficult legal questions. It’s just you want that third dispassionate mind to review what the facts are.

Justice Breyer, on the importance and purpose of a warrant,  US v Wurie, oral argument, April 29, 2014.

No Mr Chief Justice, all social media is NOT designed to be made public

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Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

Musings on the Upcoming Cell Phone Search Case

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Next Tuesday, the Supreme Court hears oral argument in two cases, Wurie v. United States, and Riley v. Califonia.  Both involve the question of whether incident to arrest police can search a cell phone without a warrant, after arresting someone.  One involves a search of contacts from a flip phone; the other a smart-phone in which photos, texts, and call logs were searched.  

In thinking about these cases (which are for all practical purposes, one case) there are multiple ways the Court could resolve it.   They could argue that the existing precedent Chimel v. California provides support for the warrantless arrest.  Incident to arrest, in order to protect either other safety or to preserve evidence, a warrantless search of the person and the area within his or her immediate control can be searched.   This minimizes privacy, it assumes one does not have an expectation of privacy in not having government search the contents of your phone without a warrant.  Yet, it would be consistent with much case law, and the Court’s forty-plus year movement towards crime control.  

The government argues that there is both an officer safety and a evidence argument supporting the warrantless search.  They claim it is possible that an arrestee could use his phone to set off a remote bomb.   This could be true, in the most extremely rare exigent circumstance.  It could be true in those rare arrests of a suspected terrorist, but for 99.9% of arrestees, it has no basis in reality.  As Justice Scalia said in dissent over the Court’s permitting police to take DNA swabs of arrestees, in order to determine their identify, it “taxes the credulity of the credulous.”   Maryland v. King, 2013.   

Yet, there are two other possible outcomes.  One which would permit the search, one which would not.   In the former, the Court could extend the 2009 precedent from Arizona v. Gant, from the vehicle context to any arrest.  In Gant, the Court said that it was possible to search that the vehicle passenger compartment when it was reasonable to believe that further evidence of the crime of arrest would be found.   Thus, if you are arrested for a drug offense, it would be reasonable that your phone would contain a treasure trove of information about your dealer or customers.    But if you were arrested for public indecency, or even for an active warrant for failure to appear in court, it would not.    This could be a likely possibility, and it might satisfy Justice Scalia, who authored the concurrence in Gant  that created that standard.

But, there is a third possibility.  In United States v Jones,  2012, and Florida v. Jardines, 2013, Justice Scalia resurrected an old Fourth Amendment doctrine from the dead.   In the GPS case (Jones), Scalia argued that the government’s placement of a GPS tracking device on the under-carriage of a suspects vehicle was a physical trespass on a constitutionally protected area.   The Fourth Amendment guarantees against unreasonable searches of one’s person, houses, papers, and effects.   The vehicle is clearly an effect.   If government physically intrudes on that effect without a warrant, it is a trespass, and thus an unreasonable search.   If the vehicle is an effect, the cell phone is certainly an effect, and Scalia is likely, I think, to argue that a warrantless search of it is a violation of the original understanding of the Fourth Amendment.  

Perhaps I will be wrong, and he won’t argue trespass next week.  We’ll see. But in thinking of the outcome, there are two clearly defined camps.    Alito, Roberts, Kennedy, and Breyer will almost certainly argue that the search is warranted.   Heck, Alito is so far to the right as the ultimate post-9/11 statist, that he will even accept the government’s argument about officer safety to prevent bombs.  On the other side, I am confident, will be Justice Scalia, Ginsburg, Sotomayor, and Kagan. They have been a consistent voting block on Fourth Amendment cases in recent years.  There is little reason to expect them to diverge now.

This leaves the wildcard.  Justice Thomas.   Thomas joined the “trespass doctrine” argument in both Jones and Jardines.    He also joined the 5-4 majority in Arizona v. Gant, modifying the search incident to arrest doctrine, to those instances where it is reasonable to believe further evidence of the crime of arrest will be found.   Will he stick with trespass — and the framers views (as Scalia and he seem to prefer)?   Or will he use Gant, and possibly join the Four Fourth Amendment conservatives to uphold the search?   Since he doesn’t speak at oral argument, that answer is unlikely to be provided next week.  Yet, in an anonymous tip case that Thomas authored this week, Scalia skewered him in a scathing dissent, going so far as to say that “The Court’s opinion has served up a freedom-destroying cocktail of patent falsity.”   Will Thomas allow that attack on him to sway his views?  I doubt it, but who knows?  

Personally, I am rooting for the trespass doctrine, even though I don’t like it, and would rather see a Katz “reasonable expectation of privacy” argument, but since Scalia wants that standard to go away, I think the other “liberals” are more likely to just go along with Scalia and get the result they want with a trespass doctrine rationale.   

It should be interesting to see what happens, both next week, and in late June, when the case is decided.  Ironically, none of this would be an issue if police were simply not lazy at times.  At the time of the arrest, they could seize the phone as evidence, and then take the time to seek a search warrant.  It would probably be granted, and would then satisfy the Fourth Amendment’s command.    But that today, sadly, is the exception, and not the rule.   

Today’s tale of the absurd in the world of law enforcement reasoning

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Yesterday I provided a quote from the remarkable dissent from People v Weaver, a 1991 Court of Appeals decision involving a drug profile.   Today I’d like to share the reasoning (accepted by the Court’s majority, written by Judge Roger Wollman) as the basis of reasonable suspicion for a stop.

[An officer is waiting at the Kansas City Airport, watching people get off of a flight from Los Angeles at 6:45am].  As Weaver disembarked from Flight 650, he caught Officer Hick’s attention because he was a “roughly dressed” young black male who was carrying two bags and walking rapidly, almost running, down the concourse towards a door leading to a taxi stand.    Because Hicks was aware that a number of young roughly dressed black males from street gangs in Los Angeles frequently brought cocaine into the Kansas City area and that walking quickly towards a taxicab was a common characteristic of narcotics couriers at the airport, he became suspicious that Weaver was a drug trafficker.   –  People v Weaver, 966 F.2d 391 (1992) (Judge Roger Wollman).  

Wait, are you kidding me?  A “roughly dressed” young black man walking swiftly towards a taxi-cab after getting off a 3 or 4 hour flight is suspicious, since Los Angeles is a source city for narcotics in the midwest?  

I’ll say it again, are you kidding me?     This is a classic example of the way judges – particularly federal judges – accept wholeheartedly and uncritically – the rationales that law enforcement make up for profiling in the war on drugs.    While we can lay much blame for racial profiling on the police,  the Judicial branch deserves its share of blame for allowing such travesties of justice.   

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