Search and Seizure

RSS Feed for this category How to Deal with Cops has a fun interview with Flex Your Rights founder Steve Silverman.

As many of you know, Flex Your Rights is my day job, hence the occasional posts about consent searches and 4th Amendment issues that you sometimes see here in addition to drug policy coverage.

New Certification Proposed for Drug-Sniffing Dogs As They Are Wrong Far More Often Than Right

United States
A Illinois state representative has again asked fellow legislators to force police dogs to meet certification standards before being used for tasks such as sniffing for drugs at traffic stops. The bill, introduced by State Rep. Jim Durkin (R-Western Springs) follows a recent investigation that showed drug-sniffing dogs, according to state data, have been wrong more often than they have been right about whether vehicles contain drugs or drug paraphernalia.
Chicago Tribune (IL)

Warrantless GPS Tracking Facing Fourth Amendment Challenges [FEATURE]

GPS satellite
by Clarence Walker

[Editor’s note: This feature story is part two of an occasional series involving electronic surveillance and its impact on the Fourth Amendment in drug investigations and other criminal matters in the United States. Read the first installment in the series here. Clarence Walker is a Houston-based criminal justice journalist. He can be reached at]

Recent federal and state court decisions that overturned narcotic convictions of suspected drug dealers as a result of law enforcement using warrantless GPS tracking devices to watch suspects have triggered an intense debate over the Fourth Amendment, which provides citizens against unreasonable search and seizures.

The GPS controversy is at the center of a raging legal discussion over privacy rights: Should law enforcement  be allowed to install a GPS on a vehicle without a warrant during criminal investigations to track a suspect’s movement 24-7, and does warrantless tracking violate a person’s privacy although they are being watched by the police in public?

Two significant 2010 decisions on privacy rights under the Fourth Amendment highlight the continuing struggles that courts around the country are having around GPS tracking. In August, the DC 9th Circuit Court overturned the conviction of Antoine Jones based on police using a warrantless GPS to connect Jones to places containing several kilos of cocaine. Jones was sentenced to life without parole at Supermax federal prison in Florence Colorado. (Read more about the Antoine Jones case here.)

Legal experts say this case might go before the US Supreme Court. Federal prosecutors were denied an en-banc hearing in November to have a full court to throw out the 9th Circuit decision, and they have until February 14 to petition the Supreme Court to  consider their appeal of the Jones case. In the meantime, Jones continues to sit in prison.

"When the court denied the government an en-banc hearing, this sets up the Antoine Jones case for the Supreme Court to decide if GPS tracking violates the Fourth Amendment. The importance of the Jones case is that it would be the first time the Supreme Court would decide GPS surveillance in relation to search and seizure," said Stephen Lecklar, who wrote the appeal that reversed Jones conviction.

In a second case, Delaware v. Holden, on December 28, Delaware Superior Court Judge Jan Jurden reversed a suppression hearing from a lower court involving drug charges against Michael Holden. Holden, a Newark resident, was stopped by police carrying 10 pounds of marijuana. The evidence showed that prior to arresting Holden, police used GPS tracking without a warrant to follow him for 20 days.

Antoine Jones remains in federal prison pending, he hopes, one last government appeal. (Image courtesy the author)
According to press accounts, Deputy Attorney General Brian Robertson argued that information from the GPS that police attached to Holden’s vehicle was only a part of a larger "multifaceted case" against the marijuana trafficker. But Holden’s attorney, John Decker, told the court that "the 20-day long use of the GPS amounted to an unreasonable search under the state constitution and violated his client's privacy without probable cause."

"The advance of technology will continue ad infinitum," said Judge Jurden in throwing out the charge. "An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there’s nothing to protect our citizens from being tracked 24-7. And if no warrant is required for such surveillance any individual could be tracked indefinitely without suspicion of any crime by police without probable cause."

Meanwhile, Antoine Jones remains frustrated over the fact of being unable to be released on bond although his conviction has been reversed and the appellate courts this past November also denied the feds to an en-banc hearing to strike down the ninth circuit original decision.

"We are pleased that the Court of Appeals declined the Government's request for en banc reconsideration and reaffirmed the constitutional concerns identified by the ninth circuit," Jones' appellate attorney, Stephen Leckar, said in an email sent to reporters covering the case.

But Jones questions why he's still in prison."My conviction has been overturned, the en-banc hearing was denied,  the appeal process is over but I am still in this hellhole," he wrote to the author. "The feds' last shot is to petition the US Supreme Court, but the experts have said that only one-percent of petitioners are chosen for review."

"The court should release Mr. Jones on bond," said California attorney Diane Bass, who handles federal drug cases.

Chances for Jones's release on bond pending the government's next course of action are unclear. "The issues that a court looks at when deciding whether to release someone on bond are, is the defendant a flight risk or a danger to society," Bass said. "In an appeal situation, they also look at whether there are viable issues on appeal. Drug cases carry a presumption of flight, because of the mandatory minimum sentences which the defendant has the burden of rebutting. And the court would require an equity of $100,000 or more. I would say that since there's a possibility the Supreme Court will deny certiorari in this case, the court would be wise to release Mr. Jones on appeal."
Delaware Superior Court Judge Jan Jurden
While Jones sits in federal prison pending the resolution of his case, the thorny issue of warrantless GPS tracking and the Fourth Amendment continues to vex the courts. When the issue finally arrives at the Supreme Court, it will have to decide first whether GPS tracking constitutes a "search" under the Fourth Amendment, and second whether long-term, continuous GPS tracking without a warrant amounts to an illegal search.

"There's no clear Supreme Court guidance on this issue," said John Verdi, a senior counsel at the Electronic Privacy Information Center, a DC-based advocacy group. "Courts have left the states to decide what should be done using their own state constitutions."

Some states, like Texas, have specific requirements law enforcement officers must meet to obtain a warrant for GPS tracking. What isn't too well publicized is that an officer can ask the court for a tracking order based on reasonable suspicion as opposed to requesting a warrant which require a higher burden of probable cause.

Steve Baldassano, a senior-level prosecutor with the Harris County District Attorney Office in Houston explained:  "A tracking order requires 'reasonable suspicion.' If it's okay for a cop to follow someone in a car, it's not that much worse if the cops watch a person using electronic signals."

An unidentified Houston Police Department narcotic officer offered this blunt view: "Theoretically, a person can have a GPS tracker placed on their vehicle for life as long as the investigator has reason to believe the person will commit criminal offenses."

Whatever the realities on the street, the state and federal courts have split on warrantless GPS tracking and related issues. Courts in Wisconsin and Virginia have supported warrantless tracking, while courts in New Jersey, New York, Oregon, and Washington have ruled against it. With the federal appeals court also split, the issue seem ripe for Supreme Court review.

In the meantime, big brother is staying busy. Maryland state officials announced last year they would implement a statewide network in 2011 to collect data from automatic license plate readers. "The license plate reader provides the plate number, exact time, and the GPS location of a vehicle upon sight," the Muckraker blog noted.

With technological innovation fueling the rise of the surveillance state, preserving one's privacy from the state looks to be ever more difficult. By the time the Supreme Court has sorted out warrantless GPS tracking, there will doubtless be some new form of surveillance that we will have to be litigated.

Drug-Sniffing Dog Performance Massively Affected by Handlers' Beliefs

A new study by researchers at UC Davis has found that drug-sniffing dog/handler teams' performance is affected by human handlers' beliefs, possibly in response to subtle, unintentional handler cues. The study found that detection-dog/handler teams erroneously 'alerted,' or identified a scent, when there was no scent present more than 200 times-particularly when the handler believed that there was scent present.
Sify News (India)

If You Have Drugs, Don't Agree to a Police Search

It seems like such a simple concept, but for some irrational reason, a lot of people still don't get it. Here's another example of what happens when you give police permission to search your house for drugs:

After being told the deputies were looking for evidence of illegal activity, Cantres-Soto said, "You can search my whole room. I go to college and I don't have anything to worry about. You can search everything."

That's exactly what they did and it didn’t work out so well for this guy:

He remains held in the Osceola County Jail in lieu of $8,000 bail on charges of Possession with Intent to Sell Crack Cocaine and Possession of Drug Paraphernalia.

Did he think that agreeing to the search would somehow stop them from searching? A lot of people worry that refusing the search will make police suspicious, but so what? Which is worse: making police suspicious or just giving up and going straight to jail?

Remember that there's more to the matter than just what takes place at your doorstep. Unless they have a search warrant or probable cause, police need your permission to make the search hold up in court. It's true that police sometimes search despite your refusal, but if you end up in front of a judge, the question of whether you agreed or not is a big issue. You've got no case if you gave permission, but your lawyer can often get the charges dropped if you said no to the search. Our prisons are filled with people who didn't understand this distinction.

If you're not convinced yet, maybe this will help:

Michigan's Top Court to Settle Dispute Over Marijuana Bust

United States
The Michigan Supreme Court is considering whether marijuana found by a firefighter during an emergency call can be used to prosecute a man in the state's Oakland County. A judge and the state appeals court so far have thrown out evidence against Mark Slaughter.
Detroit Free Press (MI)

Welfare Drug Testing Bills Introduced in Four States [FEATURE]

drug testing lab -- corporate welfare carrying out an ineffective strategy?
Critics of welfare drug testing cite unconstitutionality of warrantless drug testing, the cost of drug testing tens or hundreds of thousands of people, counterproductive results and mean-spiritedness in opposing legislation that would require it. But that hasn't stopped legislators from coming back again and again.

With this year's state legislative season barely under way, bills have been introduced in four states -- Kentucky, Missouri, Nebraska, and Oregon -- to require drug testing for people receiving public assistance. And in a novel twist, a bill in Indiana would require unemployment recipients to declare they are not using illegal drugs and threatens them with up to three years in prison for perjury if they are found to be using them.

But while such bills may be popular with politicians of a certain stripe, they don't find much support among professionals in the field. Groups that have lined up against such bills include the American Public Health Association, the National Association of Social Workers, the National Association of Alcoholism and Drug Abuse Counselors, the American College of Obstetricians and Gynecologists, the National Council on Alcoholism and Drug Dependence, the Association of Maternal and Child Health Programs, the Center for Addiction and Mental Health, the National Health Law Project, the National Association on Alcohol, Drugs and Disability, National Advocates for Pregnant Women, the National Black Women’s Health Project, the Legal Action Center, the National Welfare Rights Union, the Youth Law Center, the Juvenile Law Center, and the National Coalition for Child Protection Reform.

The American Civil Liberties Union (ACLU), which successfully litigated against Michigan's welfare drug testing law, has also come down strongly against welfare drug testing. Such laws are "scientifically, fiscally, and constitutionally unsound," in the ACLU's opinion. The group cites studies showing welfare recipients are no more likely to use drugs than the rest of the population and that 70% of illicit drug users are employed. It also cites research showing that drug testing is an expensive, but ineffective way to uncover drug abuse. (Full citations and more information are available at the ACLU link above.)

But the kicker for the ACLU is the unconstitutionality of warrantless drug testing by the state, as determined by the US 6th Circuit Court of Appeals in the Michigan case. Michigan was the only state to actually implement a welfare drug testing program, but the appeals court found that the program violated the Fourth Amendment's provision barring unreasonable searches.

The persistence of such attempts is drawing concern from the drug reform community as well. Given the fiscal pressures facing the states, legislators could be even more susceptible to pseudo-populist demagoguery than usual.

"I am quite concerned that recurring legislative proposals to require drug testing of welfare and/or unemployment applicants and beneficiaries will gain new momentum with the budget crises confronting so many states, and also in Congress," said Ethan Nadelmann, executive director of the Drug Policy Alliance (DPA). "The proposals are mean-spirited, counter-productive and will ultimately cost much more than they save by depriving needy Americans of access to benefits. DPA will do all it can to ensure that these proposals do not become law."

"These kinds of laws aren't going to stop someone who is addicted from being addicted," said Richard Wexler, executive director of the National Coalition for Child Protection Reform. "They're just going to drive them further away from getting any kind of help. Also, it is often poverty that causes the stress that helps create addiction. If you make someone poorer, you just deepen that despair," he pointed out.

"If you really want to deal with the problem of addiction, provide treatment on demand," Wexler offered. "And if people are worried that not everyone will take advantage of it, let's put that to the test. Make drug treatment immediately available and see if the claim that people will turn it down has any merit."

But nobody is offering treatment on demand. Instead, legislators are offering up a stick with no carrot.

In Kentucky, a bill championed by Rep. Lonnie Napier (R-Lancaster), HB 208, would require all adults applying for public assistance to undergo drug tests, followed by random testing once a year. The measure would apply to all adults receiving or applying to receive food stamps, cash assistance, or Medicaid. Although Napier told the Richmond Register a positive test result would not necessarily result in the loss of benefits, the bill itself says that a positive test will make the individual "ineligible" for public assistance.

"There’s people buying food with food stamps and trading that food for drugs. Children are not getting benefit from it. Children do not need to be in a home where drugs are present," the loquacious Napier told the Register. "Maybe it could get people off drugs. Drugs are breaking the state up. If we could get a few people off drugs, it would be worth it," he said.

But Napier's assertion about trading food stamps for drugs appears to be based on little more than hearsay. "People tell me people are abusing the system," he said. "If you knew you were to be tested, you'd want to be clean."

Still, Napier's bill has some powerful friends. Among its cosponsors are House Speaker Greg Stumbo (D-Prestonburg) and House Minority Leader Danny Ford (R-Mt. Vernon).

In Missouri, Rep. Ellen Brandom (R-Sikeston) is pushing HB 73, which would require a drug test for anyone applying for or receiving public benefits if there is "reasonable cause" to believe they are using drugs. Failure to pass the drug test would result in the suspension of benefits for one year, and the person would then have to apply to be reinstated in the program.

Brandom told Kansas City's KCTV 5 that she was doing it for the taxpayers. "They're very resentful that they're working hard, and have to take a drug test to work," Brandom said. "The people who aren't working can receive their tax dollars, and don't have to be held to the same high standard."

That bill passed the House Rules Committee on an 11-4 vote last week and is set for a House floor vote this week. A similar measure passed the House last year, but died in the Senate.

A welfare drug testing bill has also been introduced in Nebraska. The Chronicle covered it last week; you can read about it here.

In Oregon, there are two separate bills aimed at recipients of public assistance. State Sen. Bruce Starr (R-Hillsboro) has introduced SB 538, which would require all people receiving welfare and food stamps to be take a drug test each six months -- at their own expense. A positive test result would result in the termination of public assistance.

And state Rep. Dennis Richardson (R-Central Point) has introduced HB 2995, which would require those applying for unemployment benefits to first pass a drug test. Those who tested positive would have to enter drug treatment or give up their benefits.

Richardson's bill has not yet been assigned to a committee. Starr's bill was assigned Tuesday to the Senate Health Care, Human Services and Rural Health Committee. No hearing dates have been set.

And then there's Indiana. In the Hoosier State, state Sen. Jean Leising (R-Oldenburg) has introduced SB 86, which would require people seeking unemployment benefits to declare on their applications that they will refrain from any illegal drug use. The bill also says that applicants are subject to "penalty of perjury" if they sign a declaration and then are found to be using drugs. Perjury carries a prison sentence of up to three years in Indiana.

"In employers' eyes as well as many Hoosiers' eyes, there is something wrong with the system if unemployment applicants are able to receive taxpayer money that may, in fact, be used to purchase controlled substances and lead to them being unqualified to work," Leising said in a press release. "This is an issue legislators need to review."

The bill is moving. It passed out of the Senate Pensions and Labor Committee last week.

The battle over welfare and/or unemployment drug testing is going to have to be fought again and again. In addition to the states that have bills this year, similar legislation has been proposed since 2008 in Texas, Rhode Island, Missouri, Nebraska, Georgia, Kansas, West Virginia, and Arizona. The impulse to target the poor and disenfranchised remains strong and is made even stronger by the dire fiscal position in which the states find themselves. The bright side is that, so far, that impulse has not prevailed.

Supreme Court Debates Warrantless Entry When Police Smell Marijuana

Recent Supreme Court decisions regarding search and seizure haven't exactly signaled an unyielding reverence for our 4th Amendment rights, so I shudder to think how the Court will rule on this:

Kentucky police were following a man who had just sold drugs to an undercover informant. They entered an apartment breezeway, heard a door slam and found they had two choices.

Behind door No. 1 was the dealer. And, unfortunately for him, behind door No. 2 were Hollis King and friends, smoking marijuana.

Smelling the drug, the officers banged loudly on King's apartment door and identified themselves as police. The officers said they heard a noise and feared evidence was being destroyed. They kicked down the door and found King, two friends, some drugs and cash. [Washington Post]

Home searches generally require a warrant, even when probable cause exists (the smell of marijuana), but officers claimed their fear that evidence would be destroyed constituted an "exigent circumstances" exception to the warrant requirement. Ironically, however, the presence of police became known to the suspects only because the officers knocked and announced themselves. If any effort was made to dispose of evidence, it was obviously triggered by the police, who could have waited for a warrant rather than initiating contact right then and there.

If the Supreme Court upholds this search, police will be encouraged to creatively interpret any noises heard within homes they'd like to search, and it's hard to imagine what sorts of sounds couldn’t potentially be said to indicate possible destruction of evidence. Police who hear "sudden movements" after pounding on someone's door can claim to be concerned about destruction of evidence, but who wouldn't make a sudden movement if cops were shouting and banging on the door? Maybe I'm just putting on some pants. Maybe I'm hastily locking my dog in the bathroom so they won't shoot its brains out. People are going to react when disturbed in their homes and it's absurd to strip our 4th Amendment rights based on one of many possible explanations for the movements people make when you startle them.

Keep in mind, however, that this case involved a probable cause situation in which police did smell marijuana. Even the worst possible ruling still wouldn't give police the authority to randomly knock on doors with no evidence and perform emergency searches based on suspicious reactions from the people inside. But if the Court continues chipping away at the 4th Amendment at its current pace, I can't blame anyone for worrying that we're headed in that direction. Fortunately, some of the justices expressed serious concerns about giving police more leeway to perform emergency searches. This one could go either way and we'll be sure to keep you posted.

Cross-posted from Flex Your Rights

Police Can Kick Down Doors in Drug Searches, Some Justices Say

Police officers who smell marijuana coming from an apartment can break down the door and burst in if they have reason to believe this evidence might be destroyed, several Supreme Court's justices suggested Wednesday. In the past, the high court has said police usually cannot enter a home or apartment without a search warrant because of the 4th Amendment's ban on "unreasonable searches and seizures."
Los Angeles Times (CA)

Drug Trade Among Whites More Open in NYC?

New York, NY
United States
While police crack down on drug deals in mostly minority neighborhoods, the drug trade among whites in New York City operates with relative impunity, statistics show. In 2009, only 10 percent of the 46,000 people arrested on marijuana-related charges by the New York City Police Department were white, according to a 2010 study — though whites are often among its heaviest drug users.
Metro (NY)

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