Posts Tagged ‘florida v. jardines’

In a devastating ruling handed down in Maryland v. King, a divided U.S. Supreme Court has approved the practice by police of forcefully obtaining DNA samples from individuals arrested for serious crimes, even though they are presumed innocent, without first obtaining a search warrant.

Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living. As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that “today’s incursion upon the Fourth Amendment” will someday be repudiated.

As Justice Antonin Scalia, writing for the dissent, points out, the Court’s ruling succeeds only in burdening “the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” Moreover, if such a dubious practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify the “taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.”

In 2009, Maryland police arrested Alonzo Jay King Jr. on charges of assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, police carried out a cheek swab on King to obtain his DNA profile without first procuring a warrant. The DNA sample was then matched up against a database which identified him as having allegedly been involved in a 2003 rape. King was then convicted of the 2003 crime. On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.”

In agreeing to hear the case, the Supreme Court was asked to determine whether the Fourth Amendment allowed law enforcement officials to collect DNA from people who have merely been arrested and so are presumed innocent. Yet  the Court’s subsequent 5-4 ruling which equates forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” further guts an already severely disemboweled Fourth Amendment. Justices Anthony Kennedy, John Roberts, Clarence Thomas, Stephen Breyer and Samuel Alito affirmed the practice of warrantless DNA grabs by the police. Issuing a strongly worded dissent were Justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The Supreme Court’s ruling in Maryland v. King is available at http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf.

For more on these issues, read my new book A Government of Wolves: The Emerging American Police State which paints a chilling portrait of a nation in the final stages of transformation into a police state, complete with surveillance cameras, drug-sniffing dogs, SWAT team raids, roadside strip searches, blood draws at DUI checkpoints, mosquito drones, tasers, privatized prisons, GPS tracking devices, zero tolerance policies, overcriminalization, and free speech zones.

“This is the problem when police officers and police departments have a financial interest in doing their job. We got rid of bounty hunters because they were not a good thing. This is modern day bounty hunting.”—Public Defender John Rekowski

Long before Americans charted their revolutionary course in pursuit of happiness, it was “life, liberty, and property” which constituted the golden triad of essential rights that the government was charged with respecting and protecting. To the colonists, smarting from mistreatment at the hands of the British crown, protecting their property from governmental abuse was just as critical as preserving their lives and liberties. As the colonists understood, if the government can arbitrarily take away your property, you have no true rights. You’re nothing more than a serf or a slave.

The Fifth Amendment to the U.S. Constitution was born of this need to safeguard against any attempt by the government to unlawfully deprive a citizen of the right to life, liberty, or property, without due process of law. Little could our ancestral forebears have imagined that it would take less than three centuries of so-called “independence” to once again render us brow-beaten subjects in bondage to an overlord bent on depriving us of our most inalienable and fundamental rights.

The latest governmental scheme to deprive Americans of their liberties—namely, the right to property—is being carried out under the guise of civil asset forfeiture, a government practice wherein government agents (usually the police) seize private property they “suspect” may be connected to criminal activity. Then—and here’s the kicker—whether or not any crime is actually proven to have taken place, the government keeps the citizen’s property, often divvying it up with the local police who did the initial seizure.

For example, the federal government recently attempted to confiscate Russell Caswell’s family-owned Tewksbury, Massachusetts, motel, insisting that because a small percentage of the motel’s guests had been arrested for drug crimes—15 out of 200,000 visitors in a 14-year span—the motel was a dangerous property. As Reason reports:

This cruel surprise was engineered by Vincent Kelley, a forfeiture specialist at the Drug Enforcement Administration who read about the Motel Caswell in a news report and found that the property, which the Caswells own free and clear, had an assessed value of $1.3 million. So Kelley approached the Tewksbury Police Department with an “equitable sharing” deal: The feds would seize the property and sell it, and the cops would get up to 80 percent of the proceeds.

Thankfully, with the help of a federal judge, Caswell managed to keep his motel out of the government’s clutches, but others are not so fortunate. One couple in Anaheim, Calif., is presently battling to retain ownership of their $1.5 million office building after the U.S. Drug Enforcement Administration filed an asset-forfeiture lawsuit against them because one of their tenants allegedly sold $37 in medical marijuana to an undercover agent.

Some states are actually considering expanding the use of asset forfeiture laws to include petty misdemeanors. This would mean that property could be seized in cases of minor crimes such as harassment, possession of small amounts of marijuana, and trespassing in a public park after dark.

As the Institute for Justice points out:

Civil forfeiture laws represent one of the most serious assaults on private property rights in the nation today.  Under civil forfeiture, police and prosecutors can seize your car or other property, sell it and use the proceeds to fund agency budgets—all without so much as charging you with a crime.  Unlike criminal forfeiture, where property is taken after its owner has been found guilty in a court of law, with civil forfeiture, owners need not be charged with or convicted of a crime to lose homes, cars, cash or other property.

Americans are supposed to be innocent until proven guilty, but civil forfeiture turns that principle on its head.  With civil forfeiture, your property is guilty until you prove it innocent.

Relying on the topsy-turvy legal theory that one’s property can not only be guilty of a crime but is guilty until proven innocent, government agencies have eagerly cashed in on this revenue scheme, often under the pretext of the War on Drugs. By asserting that someone’s personal property, a building or a large of amount of cash for example, is tied to an illegal activity, the government—usually, the police—then confiscates the property for its own uses, and it’s up to the property owner to jump through a series of legal hoops to prove that the property was obtained legally.

Despite the fact that 80 percent of these asset forfeiture cases result in no charge against the property owner, challenging these “takings” in court can cost the owner more than the value of the confiscated property itself. As a result, most property owners either give up the fight or chalk the confiscation up to government corruption, leaving the police and other government officials to reap the benefits. For example, under a federal equitable sharing program, police turn cases over to federal agents who process seizures and then return 80% of the proceeds to the police.

Asset forfeitures can certainly be lucrative for cash-strapped agencies and states. In the fiscal year ending September 2012, the federal government seized $4.2 billion in assets, a dramatic increase from the $1.7 billion seized the year before. Between 2004 and 2008, police in Jim Wells County, Texas seized over $1.5 million. The Metropolitan Police Department in Washington, D.C. collected $358,000 from civil forfeiture in fiscal year 2011, and $529,000 from federal equitable sharing. The State Attorney’s Office in Madison County, Illinois, made $500,000 from asset forfeiture over the course of eight years.

Often, these governmental property grabs take the form of highway robbery (literally), where police officers extract money, jewelry, and other property from unsuspecting motorists during routine traffic stops. As Mother Jones quips, “forfeiture corridors are the new speed traps.” Indeed, states such as Texas, Tennessee, and Indiana are among the worst offenders. Mother Jones continues:

You all know what a speed trap is, right? If you have a highway running through your small town, you can make a lot of money by ticketing out-of-state drivers who are going one or two miles per hour over the speed limit. How many victims are going to waste time trying to fight it, after all? But have you heard about “forfeiture corridors”? That’s a little different — and quite a bit more lucrative. All you have to do is pull over an out-of-state driver for supposedly making an unsafe lane change, have your police dog sniff around for a bit of marijuana residue, and then use civil asset forfeiture laws to impound any cash you might find. Apparently it’s especially popular on highways leading into and out of casino towns.

In typical fashion, these police traps tend to prey on minorities and the poor, as well as undocumented immigrants and individuals who happen to have large amounts of cash on hand, even for lawful reasons. One such person is Jerome Chennault, who fell prey to Madison County, Illinois’ forfeiture corridor in September 2010. En route to Nevada after a visit with his son, Chennault was pulled over by police for allegedly following another car too closely. When police asked to sweep Chennault’s car with a drug dog, Chennault obliged, believing that he had done nothing wrong and had nothing to hide and completely unaware that he had fallen into a forfeiture trap.

During the search, the drug dog alerted on a black bag in the back seat of the car which contained about $22,000 in cash. The money, Chennault explained, was intended for a down payment on a home.  The dog did not find any drugs in the car, nor was there any evidence of criminal activity. However, instead of letting Chennault go on his way with a traffic citation, the police confiscated the cash, claiming that since the drug dog alerted to it, it must have been used in the commission of a drug crime. Chennault challenged the seizure in court, after months spent traveling to and from Illinois on his own dime, and eventually succeeded in having his money returned, although the state refused to compensate him for his legal and travel expenses.

Tenaha, Texas, is a particular hotbed of highway forfeiture activity, so much so that police officers keep pre-signed, pre-notarized documents on hand so they can fill in what property they are seizing. Between 2006 and 2008, for instance, Tenaha police seized roughly $3 million.

As Roderick Daniels discovered, it doesn’t take much to get pulled over in a forfeiture corridor like Tenaha’s. Daniels was stopped in October 2007 for allegedly traveling 37 mph in a 35 mph zone. He was ordered to hand over his jewelry and the $8,500 in cash he had with him to purchase a new car. When he resisted, he was taken to jail, threatened with money-laundering charges and “persuaded” to sign a waiver forfeiting his property in order to avoid the charges.

In an even more egregious case, Jennifer Boatright and Ron Henderson, an interracial couple travelling through Tenaha, were forced to forfeit the $6,000 cash they had with them to buy another car when police threatened to turn their young children over to Child Protective Services. Another traveler, Maryland resident Amanee Busbee, was also threatened with losing her child to CPS after police stopped her, her fiancé and his business partner when they were en route to Houston with $50,000 to complete the purchase of a restaurant. Boatright and Busbee were eventually able to reclaim their money after mounting legal challenges.

Comparing police forfeiture operations to criminal shakedowns, journalist Radley Balko paints a picture of a government so corrupt as to render the Constitution null and void:

Police in some jurisdictions have run forfeiture operations that would be difficult to distinguish from criminal shakedowns. Police can pull motorists over, find some amount of cash or other property of value, claim some vague connection to illegal drug activity and then present the motorists with a choice: If they hand over the property, they can be on their way. Otherwise, they face arrest, seizure of property, a drug charge, a probable night in jail, the hassle of multiple return trips to the state or city where they were pulled over, and the cost of hiring a lawyer to fight both the seizure and the criminal charge. It isn’t hard to see why even an innocent motorist would opt to simply hand over the cash and move on.

In an age in which the actions of the police—militarized extensions of the government—are repeatedly sanctioned by the legislatures and the courts, hard-won concessions such as the U.S. Supreme Court’s 5-4 ruling in Florida v. Jardines that the use of drug-sniffing dogs to carry out warrantless searches of homes is unconstitutional comes as little comfort. After all, it was not long ago that this very same court sanctioned the use of drug-sniffing dogs in roadside stops, a practice that has proven extremely profitable for law enforcement officials tasked with policing the nation’s forfeiture corridors. — John W. Whitehead

Walking a narrow line, the U.S. Supreme Court has ruled 5-4 in Florida v. Jardines that the use of drug-sniffing dogs by police to carry out warrantless searches of homes is unconstitutional.

In keeping with the Court’s recent decision in Florida v. Harris, in which the justices ruled unanimously that police may use drug dogs to conduct warrantless searches during traffic stops, the Court did not address the question of whether a drug dog’s sniff constitutes a violation of one’s reasonable expectation of privacy. Instead, the Court ruled that an officer bringing a drug-sniffing dog to the front of a home without a warrant constitutes an unconstitutional invasion of private property.

In an age in which the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts, it’s difficult to really celebrate this ruling given that it basically just gives a head nod to the Fourth Amendment. What we are experiencing today is a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. It remains to be seen whether today’s ruling by the Supreme Court proves to be little more than a band-aid fix to a rapidly worsening condition.

Florida v. Jardines arose out of an incident that took place in November 2006, when Miami police responded to an “anonymous” tip that marijuana was being grown at the residence of Joelis Jardines. After police surveillance of the Jardines home failed to reveal any incriminating evidence, the police brought in a drug-sniffing dog and handler to inspect the property at 7:30 a.m. The police handler walked the dog up to the front door on a leash and the dog allegedly “alerted” to the scent of contraband, which was reported to the investigating police who also approached the door and allegedly smelled marijuana. Using this information, the police obtained a warrant to search the Jardines residence, resulting in the seizure of marijuana plants.

In court, Jardines’ lawyer moved to suppress the evidence obtained under the warrant, insisting that the warrant itself was invalid because of its reliance on the alert by the drug-sniffing dog. On appeal, the Florida Supreme Court ruled that the use of detection dogs at private residences raises significant privacy concerns. The U.S. Supreme Court, having ruled in previous cases that dog sniffs do not constitute “searches” for purposes of the Fourth Amendment, agreed to review the state court decision.

In weighing in on the matter, The Rutherford Institute had asked the Supreme Court to declare the warrantless use of drug-sniffing dogs in both scenarios, searches of homes and vehicles, to be unconstitutional in violation of the Fourth Amendment’s prohibition on unreasonable searches and seizures. In an amicus curiae brief filed with the U.S. Supreme Court in Florida v. Jardines, Institute attorneys cited mounting empirical evidence that narcotics detection dogs are unreliable and inaccurate, pointing out that both anecdotal evidence and research show that dogs frequently signal false alerts and show sensitivity to handler bias. Institute attorneys also pointed out that the amount of time it takes for the dogs to carry out a detection sniff on the perimeter of a private residence constitutes a trespass under Fourth Amendment jurisprudence.

The Court ruled unanimously in a similar case, Florida v. Harris, that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops. — John W. Whitehead

“The unspoken power dynamics in a police/civilian encounter will generally favor the police, unless the civilian is a local sports hero, the mayor, or a giant who is impervious to bullets.”—Journalist Justin Peters

From time to time throughout history, individuals have been subjected to charges (and eventual punishment) by accusers whose testimony was treated as infallible and inerrant. Once again, we find ourselves repeating history, only this time, it’s the police whose testimony is too often considered beyond reproach and whose accusations have the power to render one’s life over.

In the police state being erected around us, the police can probe, poke, pinch, taser, search, seize, strip and generally manhandle anyone they see fit in almost any circumstance, all with the general blessing of the courts. Making matters worse, however, police dogs—cute, furry, tail-wagging mascots with a badge—have now been elevated to the ranks of inerrant, infallible sanctimonious accusers with the power of the state behind them. This is largely due to the U.S. Supreme Court’s recent ruling in Florida v. Harris, in which a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine.

This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound, in which a unanimous Supreme Court determined that police officers may use drug-sniffing dogs to conduct warrantless searches of cars during routine traffic stops, comes on the heels of recent decisions by the Court that give police the green light to taser defenseless motorists, strip search non-violent suspects arrested for minor incidents, and break down people’s front doors without evidence that they have done anything wrong.

These are the hallmarks of the emerging American police state, where police officers, no longer mere servants of the people entrusted with keeping the peace, are part of an elite ruling class dependent on keeping the masses corralled, under control, and treated like suspects and enemies rather than citizens. Whether it’s police officers breaking through people’s front doors and shooting them dead in their homes or strip searching innocent motorists on the side of the road, in a police state such as ours, these instances of abuse are not condemned by the government. Rather, they are continually validated by a judicial system that kowtows to every police demand, no matter how unjust, no matter how in opposition to the Constitution.

The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

The justices of the United States Supreme Court through their deference to police power, preference for security over freedom, and evisceration of our most basic rights for the sake of order and expediency have become the architects of the American police state.

In Florida v. Harris, for example, the Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Aldo allegedly alerted to the door handle of Harris’ car, leading Wheetley to search the vehicle.

Although the search of Harris’ car did not turn up any of the drugs which Aldo was actually trained to detect, such as marijuana, Wheetley found pseudophedrine, a common ingredient in cold medicine, and other materials allegedly used in the manufacture of methamphetamine. Harris was arrested and released on bail, during which time he was again stopped by Officer Wheetley and again subjected to a warrantless search of his vehicle based upon Aldo’s alert, but this time Wheetley found nothing.

Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. The Florida Supreme Court agreed, ruling that police should be able to prove that the dog actually has a track record of finding drugs while in the field before it is used as an excuse for a warrantless search.

Unfortunately, the U.S. Supreme Court did not see it that way. In reversing the Florida Supreme Court’s ruling, the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

The Supreme Court’s decision is particularly alarming when one considers that drug sniffing dogs, even expertly trained dogs with reliable handlers, are rarely accurate. One study demonstrated that dogs were incorrect in drug identification up to 60% of the time. A 2011 study published in Animal Cognition involved a series of tests, some designed to fool the dog and some designed to fool the handler. The dogs in these tests falsely alerted 123 out of a total of 144 times. When a test was designed to fool the handler rather than the dog, the dog was twice as likely to falsely alert.

As the Animal Cognition study shows, dogs are heavily influenced by the behavior and biases of their handlers. If an officer thinks he is likely to find something, whether due to personal bias or because he finds the suspect suspicious, he often cues his dog—consciously or unconsciously—to alert on the area to be searched.

The Supreme Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The Court’s ruling in Florida v. Harris turns man’s best friend into an extension of the police state.

Despite being presented with numerous reports documenting flaws in the use of drug-detection dogs, the U.S. Supreme Court opted to ignore plentiful evidence that drug dog alerts are specious at best. Moreover, the justices also chose to interpret Aldo’s failure to detect any of the drugs he was trained to find during the two sniff searches around Harris’ car as proof of Aldo’s superior sniffing skills rather than glaring proof that drug-sniffing dogs do make mistakes. Incredibly, the Court suggested that the dog alert was due to Aldo having smelled an odor that was transferred to the car door after the defendant used methamphetamine—a supposition that is nearly impossible to prove.

Law enforcement officials have come up with a slew of clever excuses to “explain” the not uncommon phenomenon of dogs that alert but fail to uncover drugs. For example, in 2008, U.S. border patrol agent Christopher Jbara claimed that a dog alerted to a car containing no drugs because the car’s window “had been washed by a window washer on the street… and the water used to clean it could have been contaminated with bong water.” The real reason may be that the odors which dogs are trained to detect are simply chemical compositions found in a number of common products. For example, to a dog, perfume may smell like cocaine, glue may smell like heroin, and mosquito repellant may smell like the drug ecstasy.

Unfortunately, the Supreme Court’s decision is merely the latest in a long line of abuses justified by an institution concerned more with establishing order and protecting government agents than with upholding the rights enshrined in the Constitution. For example, in 2011, the U.S. Supreme Court ruled 8-1 in Kentucky v. King that police may smash down doors of homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed.  Despite the fact that police busted in on the wrong suspect in the wrong apartment, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered.

In April 2012, a divided Supreme Court ruled in Florence v. Burlington that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a strip search by police or jail officials, which involves exposing the genitals and the buttocks.

This “license to probe” is being extended to roadside stops, as police officers throughout the country have begun performing roadside strip searches without any evidence of wrongdoing and without a warrant. For example, Angel Dobbs and her niece, who were pulled over by a Texas state trooper on July 13, 2012, allegedly for flicking cigarette butts out of the car window, were subjected to roadside cavity searches of their anus and vagina. The officer claimed to be searching for marijuana. No marijuana was found.

With case after case stacking up in which the courts empower the police to run roughshod over citizens’ rights, the Constitution be damned, the outlook is decidedly grim. In fact, the U.S. Supreme Court still has to rule on another drug-sniffing, dog-related case, Florida v. Jardines, which challenges warrantless searches of individuals’ homes based on questionable dog alerts. For those hoping that our rights will be restored or at least protected, you could have a long wait.

Indeed, the next decision from the Supreme Court might just take the Fourth Amendment down for the count. — John W. Whitehead