Posts Tagged ‘search and seizure’

WASHINGTON, D.C. —Rejecting the idea that some violations of the Constitution are insignificant, the U.S. Supreme Court ruled today that police may not extend the time needed to conduct an ordinary traffic stop in order to subject the vehicle and its occupants to an examination by a drug-detecting dog unless they have specific reasons to suspect the car is carrying contraband. In its 6-3 ruling in Rodriguez v. United States, the Court held that a police officer violated the Fourth Amendment rights of motorist Dennys Rodriguez and his passenger when, after giving Rodriguez a written warning for a minor driving infraction, he continued to make them wait while a drug-sniffing dog patrolled the exterior of the vehicle.

“While this ruling is certainly a step in the right direction, as long as the courts continue to bend the Constitution to favor the police, there is little to celebrate. After all, the police are still empowered to stop cars based on anonymous tips, carry out warrantless searches of cars using drug-sniffing dogs, and subject Americans to virtual strip searches, no matter the offense,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author ofBattlefield America: The War on the American People. “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, these instances of abuse are continually validated by a judicial system that kowtows to virtually every police demand, no matter how unjust, no matter how in opposition to the Constitution.”

Battlefield_Cover_300In March 2012, police officer Morgan Struble was on early-morning patrol in Nebraska when he observed a vehicle momentarily veer onto the shoulder of the highway. Struble, who is a K-9 officer and had his dog with him at the time, pulled the vehicle over and upon approaching it determined that the driver was Dennys Rodriguez and that there was a passenger in the front seat. After Rodriguez explained that he had swerved in order to avoid a pothole, Struble obtained Rodriguez’s license, registration and proof of insurance and ran a check to determine if all the paperwork was valid and whether there were any outstanding arrest warrants for Rodriguez. After the officer determined that everything was in order and that neither Rodriguez nor the passenger were wanted, he wrote up a warning ticket for Rodriguez for violating a state law prohibiting driving on highway shoulders. Upon returning to the vehicle and giving Rodriguez back the papers, Struble asked Rodriguez for permission to allow his dog to walk around the vehicle. Rodriguez refused to give permission. Struble then ordered Rodriguez to turn the car off and exit the vehicle. Rodriguez complied and Struble led the dog around the vehicle. Although the dog did nothing during the first pass, on the second pass the dog alerted. Based on this alert, Struble and another officer searched the vehicle and found methamphetamine. This evidence was the basis for a federal indictment against Rodriguez.

Before his trial, Rodriguez moved to suppress evidence of the methamphetamine, arguing that the officer violated the Fourth Amendment’s prohibition on unreasonable searches and seizures by holding him after all matters related to the driving infraction had been completed. However, Rodriguez’s argument was rejected by the trial court, which ruled that the additional seizure of Rodriguez for the seven to eight minutes the dog sniff took was a “de minimis intrusion on Rodriguez’s Fourth Amendment rights” and was not a sufficient basis to order suppression. The court of appeals affirmed the ruling on Rodriguez’s appeal, but the U.S. Supreme Court agreed to review the case. In reversing the lower courts’ decisions, the Supreme Court adhered to prior cases holding that a traffic stop can become unlawful in prolonged beyond the time required to meet the mission of issuing a ticket.

WASHINGTON, D.C. — Citing a fundamental right to privacy, travel and association, The Rutherford Institute has asked the U.S. Supreme Court to prohibit police from gaining unfettered access to motel and hotel guest registries.

In an amicus curiae brief filed in City of Los Angeles v. Patel, et al., Rutherford Institute attorneys are asking the Court to declare unconstitutional a Los Angeles ordinance that allows police to inspect private hotel and motel records containing information about the persons who are staying there without a warrant or other judicial review. The Institute’s brief argues that the ordinance, which is similar to laws on the books in cities across the nation, flies in the face of historical protections affording hotel guests privacy in regards to their identities and comings-and-goings and burdens the fundamental rights of travel and association, which the Court has long safeguarded from arbitrary government scrutiny.

A Government of Wolves book cover“This practice of giving police officers unfettered, warrantless access to Americans’ hotel records is no different from the government’s use of National Security Letters to force banks, phone companies, casinos and other businesses to secretly provide the FBI with customer information such as telephone records, subscriber information, credit reports, employment information, and email records and not disclose the demands,” said John W. Whitehead, president of The Rutherford Institute and author of the award-winning A Government of Wolves: The Emerging American Police State. “Both ploys are merely different facets of the government’s campaign to circumvent, by hook or by crook, the clear procedural safeguards of the Fourth Amendment and force business owners to act as extensions of the police state.”

Section 41.49 of the City of Los Angeles Municipal Code requires all hotel owners to maintain a registry that collects information about persons staying at the hotel, including their names, addresses, vehicle information, arrival and departure dates, room prices, and payment methods. Under this law, it is a crime for a guest to provide false or misleading information in registering at the hotel.

The law also requires that hotels make these records available to any officer of the Los Angeles Police Department for inspection on demand, thereby allowing law enforcement officers to inspect this information at any time regardless of whether there is consent to the inspection or a warrant allowing it. Additionally, police need not have any measure of suspicion in order to review hotel registries under the ordinance and there need not be any history of criminal activity at the hotel. A hotel operator is guilty of a crime if he or she refuses to allow inspection.

In 2005, the Los Angeles Lodging Association and various owners and operators of hotels and motels in the city filed a lawsuit challenging the requirement of the ordinance that they grant unfettered access to their guest registries, arguing that the ordinance is a patent violation of the Fourth Amendment’s protection of persons’ houses, papers and effects against “unreasonable searches and seizures.”

In December 2013, the U.S. Court of Appeals for the Ninth Circuit upheld the hotel owners’ claims, ruling that the inspection of hotel registries by police is clearly a search for purposes of the Fourth Amendment. The Ninth Circuit also rejected the claim that hotels are a “closely regulated” industry that should expect government inspections, thereby holding that police are not excused from the general search warrant requirement.

In weighing in on the case before the U.S. Supreme Court, Rutherford Institute attorneys argue that police should not be given carte blanche to rummage through records containing highly personal information because this could chill the exercise of other constitutional rights, such as the right to travel and the right of association.

Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter, LLP, assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.

Warning that a texting law approved by the Virginia General Assembly is vague and overly broad and has been drafted in such a way as to give police officers leeway to carry out fishing expeditions on drivers’ cell phones, thereby opening the floodgates to a broad range of civil liberties violations, The Rutherford Institute is asking Governor McDonnell not to sign the legislation. House Bill 1907 allows police officers to pull over anyone suspected of texting or reading emails or text messages while driving. However, as I pointed out in a letter to McDonnell, any marginal safety benefits gained by passage of this law will be wholly eclipsed by the threats it poses to critical Fourth Amendment rights.

If the General Assembly wishes to discourage dangerous driving habits, they must do so in a manner that does not run afoul of the Constitution. In an age in which police officers have shown themselves to be increasingly aggressive and willing to discard Fourth Amendment prohibitions on unreasonable searches and seizures, even going so far as to perform invasive roadside cavity searches on female travelers without any probable cause of wrongdoing, this legislation renders the Fourth Amendment null and void and leaves Virginia drivers with virtually no civil liberties protection.

House Bill 1907, passed by both houses of the General Assembly and now before Governor McDonnell for his signature, allows police officers to stop and arrest drivers whom they suspect are engaging in texting or reading emails and/or text messages while driving. The law also makes texting while driving a primary offense and levies a $250 fine for the first offense and $500 fines for any offenses thereafter. Under current law, although texting while driving is illegal, it is a secondary offense, meaning police cannot pull you over simply for texting. Cautioning the governor against signing the bill into law, Rutherford Institute attorneys warn that the broad language of the law places far-reaching powers in the hands of law enforcement agents, and any marginal safety benefits gained by passage of the law will be wholly eclipsed by the threats it poses to critical Fourth Amendment rights. Paramount among the Institute’s concerns are that it expands police powers to search individuals’ private property without a warrant, does away with the need for probable cause, and fails to provide police with adequate standards for determining whether there is sufficient cause to believe a driver is texting as opposed to numerous other activities that are not a basis for a stop of the vehicle, among other things.

Specifically, I pointed out that HB 1907 contains insufficient enforcement standards to ensure that officers are not empowered to stop drivers who are not, in fact, using handheld devices while driving.  Additionally, the legislation will presumably justify an officer’s intrusive search of a citizen’s private cell phone if the officer alleges that he or she witnessed the citizen texting while driving. And finally, the bill contains an unjustifiable, blanket exemption for law enforcement officers, which undermines the legislation’s putative purpose of protecting the public. Institute attorneys advise that until the General Assembly is able to identify and articulate clear standards to guide police in enforcing a no-texting-while-driving law, McDonnell should refuse to sanction an approach that places fundamental civil rights at the mercy of government officials. — John W. Whitehead

Click here to read The Rutherford Institute’s letter to Virginia Governor Bob McDonnell.