DOJ's Attempt To Turn 4th Amendment Into A 'Useless Piece Of Paper' Called Out By Justice Sotomayor
from the you-can-have-a-drug-war-or-you-can-have-a-Fourth-Amendment,-but-not-both dept
The Supreme Court's recent track record on the Fourth Amendment has been inconsistent, to say the least. For every win -- like the warrant requirement for cellphone searches incident to arrest (Riley v. California) -- there's been a loss -- the court's granting of permanent forgiveness for officers who predicate stops on nonexistent laws (Heien v. North Carolina), as long as the mistake is determined to be "objectively reasonable."
The oral arguments in Rodriguez v. United States [pdf link] deal with another attempted expansion of law enforcement powers at the expense of the Fourth Amendment. Here's a the backstory, as summarized by Evan Bernick of HuffPo (and the Institute for Justice):
On March 27, 2012, Nebraska police officer Morgan Struble stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning, Struble asked permission to walk his drug-sniffing dog around the outside of Rodriguez's vehicle. When Rodriguez refused, Struble made him exit the vehicle and wait for backup to arrive. Roughly eight minutes later, a second officer showed up, and Struble led his dog around the car. The dog gave an "alert" for illegal drugs, and a subsequent search turned up a bag of methamphetamine.A previous decision by the Supreme Court (Illinois v. Caballes) concluded that the use of a drug-sniffing dog during a regular traffic stop was not a Fourth Amendment violation, provided the stop was not prolonged past the point of "completing that mission [the traffic stop]." Prolonged stops have been argued before, but in this particular case, there was no question that the "mission" had been "completed." It was only after the officer told Rodriguez he would let him off with warning that he brought up the subject of searching the vehicle.
The DOJ's lawyer, Ginger Anders, argued that officers should have some leeway in determining the "sequence of the stop." Applied to this situation, the DOJ is basically arguing that a cop can tell you you're free to go and then ask you to wait while he brings in a drug dog to search your vehicle. Anders' theory is that this contradictory sequence still respects the Fourth Amendment so long as the length of the stop doesn't exceed the nebulous standard of "routine time needed."
It's this slippery "routine time" that most of the argument is focused on. Both sides attempted to determine where that lies exactly on the space-time continuum, but Rodriguez's lawyer (reasonably) pointed out that the key issue should be the "completion of the mission," not the amount of time it takes to reach that point.
This attempt to reduce the Fourth Amendment to a specific number of minute-hand movement reaches its simultaneous zenith/nadir during this exchange with the DOJ's lawyer.
JUSTICE BREYER: Okay. But that's where I thought that position that I've tried to -- let me state it more clearly, I think. It is unlawful to have the dog sniff where the dog sniff unreasonably prolongs the stop, is that -- does -- is that okay if I write with the government -- if I write those words in an opinion?Presumably, Scalia was being facetious. But the underlying thrust of the government's position is clear: it wants the leeway to perform extraneous searches so long as it can fit it in under a vague time limit determined by an even vaguer "reasonable standard."
MS. ANDERS: That's right. But we don't think that a dog sniff performed right after the ticket per se unreasonably prolongs the stop. And if I could give you a hypothetical that --
JUSTICE BREYER: Ah. Well, how if the ticketwriting is over and there is nothing else to do and the policeman says, hey, this is over, at that point has it not unreasonably prolonged the stop if the sniff takes place afterwards?
MS. ANDERS: I don't think so. I mean, just imagine --
JUSTICE BREYER: Because?
JUSTICE SCALIA: Because that takes only two minutes and that's not unreasonable, right?
MS. ANDERS: That's right. And it doesn't take into account how he stops --
JUSTICE SCALIA: Big deal. The dog walks around the car for two minutes. That's --
CHIEF JUSTICE ROBERTS: It's only a violation of the Fourth Amendment for two minutes, right?
(Laughter.)
And if that's not feasible because the 2005 Caballes decision theoretically limits stops to a "reasonable" length of time, the government proposes another solution: just stick a K-9 in every cop car. Justice Sotomayor steps up to shut down this line of thinking.
MS. ANDERS: So the hypothetical that I propose is that if you imagine you have two officers conducting a stop and the first officer is explaining the ticket and what's happening with the ticket to the person, to the driver. While he's doing that, the second officer is performing the dog sniff around the car. If the officer who's explaining the ticket ends first and the dog sniff takes another 30 seconds, I don't think there's any reason to say that that stop, which maybe lasted a total of ten minutes has -- has gone on for longer than reasonably required to complete the traffic ticket.Later on, as this particular angle is argued further, Sotomayor comes down even more harshly on the government's assertions, noting that what it's attempting to do is grant itself more power at the expense of citizens' rights.
JUSTICE SOTOMAYOR: Well, I have a -- I have a real fundamental question, because this line drawing is only here because we've now created a Fourth Amendment entitlement to search for drugs by using dogs, whenever anybody's stopped. Because that's what you're proposing. And is that really what the Fourth Amendment should permit?
MS. ANDERS: I don't think it's an entitlement, Justice Sotomayor. I think once the Court said in Caballes that -- that it is permissible in some circumstances to perform a dog sniff during a traffic stop, then --
JUSTICE SOTOMAYOR: Well, in some circumstances. So why don't -- why don't we keep it cabined to Caballes, which is when it's being done simultaneous with writing the ticket. If it's not, then it's unlawful.
MS. ANDERS: Well, because that leads to arbitrary results as I was explaining with Justice Breyer, I think in that hypothetical --
JUSTICE SOTOMAYOR: It's not arbitrary. The Fourth Amendment is arbitrary by its nature. It says you can't search unless you have probable cause to search.
But the way Justice Breyer has said this -- what he's saying is you can't unreasonably prolong. You can't hold a person any -- any measurable time that would allow to get the dog. And, yes, it has to do with the resources of the police department, but we can't keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not -- is not incidental to the purpose of the stop. It's purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.This appears to be the DOJ's goal, if its arguments in this case -- and previous cases like Riley -- are to be believed. In its eyes, the Fourth Amendment is something that should be subject to law enforcement's needs and wants, rather than something to be respected and complied with.
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Filed Under: 4th amendment, dogs, doj, law enforcement, police, searches, sonia sotomayor, supreme court
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Grossly understating it
If the DOJ, and almost the entire rest of the government had it's way, the Fourth Amendment, along with all those other pesky 'rights' wouldn't be 'subject to law enforcement's needs and wants', or the 'needs and wants' of any other government agency, they would cease to exist.
As they have made abundantly clear these last few years, and even beyond, they consider anything that impedes their desires as obstacles to be eliminated or bypassed, no matter what those 'obstacles' may be.
I dearly hope sanity prevails in the end of this case, the Fourth Amendment, as well as several of the other supposed rights(now more privilege than right) of the people have already been shot full of enough holes, they certainly don't need more added.
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Re: Grossly understating it
Well, yes. We just had somebody from the DOJ moan, in repetition of what we heard from NSA and FBI and whoelse, that encryption creates a zone of lawlessness.
And that is what all the provisions in the Bill of Rights do: they explicitly carve out zones of lawlessness, areas of civil rights that the law may not mess with, no matter how much it wants to.
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Re: Re: Grossly understating it
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Re: Re: Grossly understating it
I think it's abundantly clear that the gov't considers all those constitutional protections are anachronisms. In 1776, okay, but nowadays, no way! Bad guys! Terrorists! Kiddie fiddlers! Chaos!
Not to mention prosecutors' chances of being re-elected, FFS!1!
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Re: Re: Re: Grossly understating it
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Re: Grossly understating it
Just a reminder, none of the rights listed in the bill of rights can be removed short of a constitutional amendment.
"in·al·ien·a·ble
inˈālēənəb(ə)l/
adjective
unable to be taken away from or given away by the possessor."
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Say I have a gun and you don't...
If they're inalienable then that means you'll exercise them when I'm not looking no matter how much I threaten you. Only then by shooting you dead can I end that.
In the meantime, the agencies of the US that are supposed to be enforcing the bill of rights have chosen to not. While their ability to quash our rights ends with their ability to detect and intercept, within similar confines is their ability to enforce our rights.
That's how neo-pagans, gays and blacks still get differentiated in communities despite laws that say that sort of thing is unlawful.
So, no, our constitution, and all our laws, are only as good as those (rapidly dying) good-faith efforts to enforce them and make sure everyone gets their due.
Outside that the natural order (will to power) rules.
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I like how Sotomayor and other Justices simply start interrupting the Govt representative and outright make cordial fun of the ideas. And as harsh as Sotomayor may seem when he drops the 'useless piece of paper' bomb he's right and I'd say he could be much, much harsher. The Government is trying to destroy the Constitution at every turn and in my view no amount of harsh is enough now. In fact they should be delivering much harsher sentences against the Executive. Hopefully this is the beginning of a series of decisions that will rein the Govt in.
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Re:
...the last time I checked Justice Sotomayor was female.
Or did I miss something?
(BTW: "slow clap" should be "standing ovation"!)
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Police could also just walk sniffer dogs past cars stopped at red lights, (presumably) no warrant needed.
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My impression of Roberts has gone up a notch. This guy's no knee-jerk Scalia moron.
But the whole question, of course, is what is allowed? Is the aura you give off sufficiently public (if a trained dog can smell it) to be the equivalent of "plain sight"? Is your location information broadcast to cell towers the same as publicly shared? Should Doppler radar, able to see through wall, mean that police don't need a warrant to see what's happening in a house?
At what point does the level of tech used slip from the equivalent of "plain sight" to "intrusive"?
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Re: Re: Re:
As soon as it is applied to the police or government as far as I can tell.
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Re:
Or, the cops just want to, as SOP, search anyone and everyone, "probable cause" be damned, because they *might* manage to bust someone if they search everyone. Shades of NSA haystacking.
It is a useless piece of paper. Get used to it. This'll only get worse. You don't live in a country in which gov't is constrained by constitutional rights anymore. You live in a fascist dictatorship. Enjoy what freedom you have before it's taken away from you, which it will be.
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fun
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Bah
Oh, and the dogs have been shown to react to their handler, rather than drugs or explosives often enough to be highly questionable.
If probable cause arises during a traffic stop, then the cop should apply for a warrant over his radio, and if the probable cause cited does not achieve that warrant, then the cop should be sanctioned. Which brings up supposed exigent circumstances, which needs a much better definition, with the rights of an individual severely outweighing the cops supposed need to perform.
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Re: Bah
The problem the majority of lay and those in power do not understand that the 4th declares what is reasonable... and this is a muthapupping WARRANT!!!
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Re: Bah
(some friend back in the 70's recount the time they were returning to Canada from New York. 20 or 30 miles form the border, they realize they have a nice-sized bag of weed in the car and decide to "dispose" of it rather than risk crossing the border with it. After a lazy afternoon parked on a side road smoking their weed in a closed car, they have none left and they are stopped at the border. The customs people have them in the office while a drug-sniffing dog is checking their car.
The customs guy is saying "you might as well tell us where you hid the drugs, our dog will find them pretty soon." Meanwhile he says, you can see the dog through the office window, inside the car and just going nuts bouncing and shaking his head all around the interior while the handler encourages him to point to drugs.)
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Re: Bah
But if it didn't? If it arose because you stingrayed into the conversation with the dealer while doing unconstitutional observation, and then used illegal databases for matching mobile number and license plate?
I mean, you just know that the guy is transporting bad stuff, and all you need is to come up with some "probable cause". If kicking a trained dog is all it takes, why wouldn't you do that?
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John Oliver's Dog SC base footage: https://www.youtube.com/watch?v=tug71xZL7yc
Rodriguez v. US audio: http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
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http://diablo.cachemag.net/
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New Business Opportunity...
When you are in your car, and you are stopped, just press this button and an aerosol mist of pepper spray is deployed completely around your vehicle after automatically rolling up your windows. The time to deploy the spray is prior to the officer exiting their police vehicle, so that the entire time they are working on the ticket, they are breathing the fumes.
Win Win and you can sue the police officer on the grounds of animal cruelty if they attempt to force the dog to try and sniff through the pepper spray anyway.
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Re: New Business Opportunity...
And then you will be arrested and charged with assaulting the officer.
You might get away with spraying the entire outside of your car with Liquid Ass (novelty spray that literally smells like crap). For extra fun, spray yourself with it before the officer comes up to your car. Sure, you'll suffer too, but you can be sure he'll want to spend as little time around you as possible.
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Re: Re: New Business Opportunity...
Arrested and assaulted by the officer anyway.
As it is, with each new news cycle we're running out of reasons to cooperate with the police except when forced to do so.
And it's not like law enforcement has the moral high ground of legitimacy anymore when the DoJ has decided that they can enforce the laws they believe exist, rather than the laws as they have been written.
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The petitioner was way unprepared
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Re: The petitioner was way unprepared
While it may be fashionable to view the Supreme Court as trumping both the Article I and article II branches by virtue of having in its own right as many Roman numerals as those other two branches put together, that arithmetic does not endow the court with super-legislative power.
Ultimately, the justices are charged with deciding the case before them.
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Trained sniffer dogs versus heat imaging?
Of course, we all know that "sniffer dog alerted" is code for "policeman ordered dog to alert".
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Guilt-o-meters
If a dog-sniff constitutes a search, then probable cause has to be established beforehand.
If a dog-sniff does not consitute a search then it is a means to establish probable cause (and the officer's expertise determines whether the dog effectively signals. There's no obvious dog alert that isn't subject to officer interpretation.
So this is going to end one of two ways. Either:
~a. We're going to get tired of police abuse of dogs to justify probable cause, and sniffs without warrants will become an illegal search, or...
~b. The precincts are going to cut to the chase and buy my guilt-o-meters, which never fails to detect a guilty suspect.
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clever hans
http://en.wikipedia.org/wiki/Clever_Hans
is a case of a horse that could allegedly count. It was a sham. Yet the courts are apparently willing to discard the 4th Amendment based solely on the behavior of a dog.
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Re: clever hans
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4th Amendment.
The purpose of the 4th amendment was to make searches difficult, and to keep them from being performed at the whim of some government official.
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Yes! That's it! That justifies the whole thing.
If you have nothing to hide you have nothing to fear!
:P (yes, i'm being sarcastic)
People do realize that cops have been caught planting weed and meth in teen's cars on traffic stop searches more than once right ?
If you really (and I mean REALLY) suspect something, just follow the damn procedure!
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