Court Reminds Police That Refusing A Search Isn't Inherently Suspicious Behavior

from the only-criminals-exercise-their-rights? dept

Thu, May 21st 2015 2:51pm — Tim Cushing

It really shouldn't take a judge's order to make this clear to law enforcement officers: a citizen invoking their rights isn't doing anything illegal, suspicious or otherwise signalling an involvement in criminal activity. These are simply their rights and they can choose to assert (or waive) them as they see fit.

But that's what it takes, because almost anything that isn't an immediate capitulation to a law enforcement officer's demands is often met with dubious actions, arrests and deployment of force.

Deborah Barker was arrested for methamphetamine possession after an Oregon police officer performed a warrantless search of the contents of her purse. Her motion to suppress was denied by a lower court, but the state appeals court found otherwise.

From the ruling:

Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant’s husband was “overly nervous” and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck.

We'll stop right here and discuss a couple of things.

First, officers regularly declare people they stop to be "nervous" and use that as the "reasonable suspicion" they need to prolong the stop and start fishing for criminal charges. This is obviously a very handy "tool," because almost every citizen is more nervous than usual when speaking to people who are not only armed, but possess incredible amounts of power.

Judges, fortunately, are pushing back on this assertion more frequently. Just recently, the Tenth Circuit Court pointed out that "nervousness" does not equal reasonable suspicion, although the totality of other elements (rented car in another's name, inconsistent travel plans) certainly did. Another told the DEA that nervousness -- even when combined with three cellphones and a past criminal history -- did not automatically rise to the level of reasonable suspicion. But it still must work often enough, because "nervousness = reasonable suspicion" doesn't seem to be going away.

Second, the condition of the vehicle's interior is also cited as "reasonable suspicion" -- namely that it had trash and lighters in it. Paradoxically, law enforcement almost simultaneously claims that the absence of drug paraphernalia/trash is inherently suspicious. Here it is arguing that a clean car is a drug trafficker's car in a Seventh Circuit Court decision from earlier this month:

A ten-minute search turned up nothing, save for two cell phones. The interior of the car was “spotless” and had no other personal effects, which the officers believed was suggestive of the car being a “trap car” used for drug trafficking.

You can't win. But you can try to even the odds.

Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, “I don’t want you to search my purse.”

The officer asked her to place the purse on the hood of the vehicle for "safety" reasons. (Not completely unreasonable, considering Barker hadn't answered one way or the other on the question about whether the purse held a weapon.) It fell open a little, exposing a small, gray scale. This led to the assumption of the probable cause needed to effect an arrest of Barker, combined with Barker's appearance ("leathery") and "drug history."

All well and good, but the officer then decided to search the purse without a warrant, ultimately discovering a small amount of meth hidden in a wallet. And that's where it ran into problems. First, Officer Ratliff made this assertion, which basically states that "innocent" people don't force cops to respect their rights.

Ratliff went on to note that the “innocent motoring public doesn’t generally have those indicators. They don’t get out of the vehicle and tuck their purse tightly with them and immediately refuse search.”

The lower court bought Ratliff's arguments and refused to suppress the fruits of the warrantless search. The appeals court, however, looked at each element the state claimed added up to permission to warrantlessly search Barker's purse and found them all wanting -- those being Barker's history of drug use, the vehicle's appearance, Barker's appearance ("leathery," clenched teeth), dilated pupils, in possession of a small scale and refusing to allow an officer to search her purse.

As we have previously held, the mere fact that a defendant has a history of drug use does not provide an officer with reasonable suspicion to stop a defendant, let alone probable cause to search or arrest.

[...]

For similar reasons, defendant’s inability to remain still and dilated pupils also contribute little to establishing probable cause.

[...]

[T]he record in this case lacks evidence to support an objectively reasonable inference that, even if the scale was used in connection with controlled substances, it was more likely than not that defendant was in current possession of controlled substances, as residue on the scale or otherwise.

Finally, it addresses the claim that Barker's control of her purse was yet another factor contributing to her apparent guilt.

The state argues that “[t]he strongest indicator that defendant was in possession of drugs was her conduct towards her purse.”

But that's completely wrong, according to the court. It's not a "strong indicator." It's an assertion of rights.

When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, “[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.” State v. Brown, 110…

Although furtive behavior may contribute to probable cause, asserting a constitutionally protected privacy right cannot. Defendant’s protective behavior to safeguard the privacy of her purse and her statement that she did not want it searched are not properly considered as part of the totality of the circumstances and may not contribute to probable cause.

In short (and as summed up in a footnote), police cannot use someone's constitutionally-protected right to refuse a search as probable cause to justify a search. The ruling is reversed and remanded and the police are now in the same position they were before they performed the warrantless search: looking at someone they want to arrest but without the probable cause to do so. And now it's so much worse because the officer knows Barker was in possession of a controlled substance but can't do anything about it. With the evidence suppressed, the single possession charge resulting from this arrest no longer exists.

These rights weren't granted to citizens just so the government could use any exercise of them against those availing themselves of these protections. They were supposed to safeguard citizens against governmental overreach and abuse of its powers, but default mode seems to be that only the guilty assert their rights. This mindset is so perverse -- and so pervasive -- that it has to be beaten back one court decision at a time. Law enforcement officers treat assertions of rights as, at best, an annoyance and at worst, tacit admissions of guilt. To operate under such a twisted interpretation displays an almost incomprehensible level of privilege -- where government agents are owed whatever they request and any failure to cooperate is treated with suspicion.

Reasonable Suspicion (PDF)Reasonable Suspicion (Text)

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: 4th amendment, court, deborah barker, oregon, police, refusing search, rights, search, suspicious behavior

47 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 21 May 2015 @ 3:12pm

And here is the problem.

These people were criminals and should be arrested. This story gets attention because criminals are going free, and the general public will believe that they shouldn't.

Now how many people that have not committed crimes are subject to an illegal search or other things that violate their rights? Those violations don't receive much attention, the only ones we hear about are when it is happening to people that probably should be thrown in jail.

Rights are a tricky thing. Rights have set free people that shouldn't be set free. It is easy to think that it is wrong for really, really bad people to be walking around free because their rights were violated. I agree, many shouldn't be walking around free, that is a bad thing. The only thing worse than them walking around free would be for the rest of us to not have those freedoms.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 3:20pm

Re:
You are overlooking the real problem, the more the police are allowed to violate peoples rights the more chance there is of them violating your rights.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 21 May 2015 @ 3:34pm

Re:
Then the police should make their case for probable cause and not make up new stuff, or lie to 'create' their probable cause nor try to test the boundaries of what they can get away with. There is plenty of precedent out there.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 3:35pm

Re:
> Now how many people that have not committed crimes are subject to an illegal search or other things that violate their rights?

Also, This story gets attention because criminals are going free, and the general public will believe that they shouldn't.

... or vice versa. Mind, Techdirt has mentioned Dr Watts before, but not for that story.
[ link to this | view in thread ]
Bamboo Harvester (profile), 21 May 2015 @ 3:37pm

Rights
"These rights weren't granted to citizens just so the government could use any exercise of them against those availing themselves of these protections."

Rights are NOT "granted". They're inherent, and the listing of them in the US Constitution is enumerating areas the government is *restricted* from transgressing upon.

Governments and police have NO rights - they have Powers, which ARE granted - by the citizenry, NOT by themselves.
[ link to this | view in thread ]
That One Guy (profile), 21 May 2015 @ 3:40pm

'Only criminals would oppose the good guys'
To operate under such a twisted interpretation displays an almost incomprehensible level of privilege -- where government agents are owed whatever they request and any failure to cooperate is treated with suspicion.

That, unfortunately, is pretty much exactly the mindset for the police, and large portions of the government. They believe that they are the 'good guys', and since only 'bad guys' would ever oppose them, anything other than immediate surrender or acceptance of their demands is seen as suspicious behavior and/or evidence of guilt. The idea that they might be wrong, or not the 'good guys', and therefore not justified in their actions never even crosses their minds.
[ link to this | view in thread ]
Anonymous Anonymous Coward, 21 May 2015 @ 3:48pm

Re: Rights
Indeed, the first police force was not authorized until 1844 then organized in 1845 in New York City. Police did not exist when the constitution was written.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 3:54pm

I never would have guessed that nugatory was a word...
[ link to this | view in thread ]
Sychodelix (profile), 21 May 2015 @ 4:09pm

Scale
I'm all for flexing your rights. But the scale being visible was enough to be extremely suspicious along with all the other red flags. Save it for when the police actually do something wrong.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 4:15pm

Re:
A woman, who is high on meth, riding in a truck with her husband is no threat to the public. Being no threat she does not deserve to be in jail.

A law that makes certain drugs illegal because some find drug use immoral should never exist. Forcing your morality on others is an immoral act.

But gangs you say? All the 'illegal' activity associated with drugs only exists because the black market is the only way to get them.

This woman never deserved to be arrested by a thug forcing his morality on others, glad she got the evidence dismissed.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 4:24pm

Re: Scale
I have one of those small scales, guess it's safe to assume I'm a drug user.

If using the scale to mix two part epoxy by weight is drug use then call me guilty.

Maybe she was selling some jewelry and brought her own scale to ensure the pawn shop did not rip her off.

Assuming small scale = drug user/dealer is a good way to make an ass of yourself.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 4:52pm

Re:
if cops did the "right" thing, criminals wouldnt be walking around free
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 5:14pm

If we allow the police to only violate the rights of criminals, then in the eyes of the police, we all become criminals.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 5:27pm

Re: Re:
Are the cops going to lock themselves up?
I don't think so.
[ link to this | view in thread ]
k-h, 21 May 2015 @ 5:34pm

Re:
These people were criminals and should be arrested.

No, the court just decided they weren't.
[ link to this | view in thread ]
RD, 21 May 2015 @ 5:42pm

Re: Rights
Right are not *granted* they are *recognized* or at least, they used to be. I don't know what we have anymore but it's not what it should be nor what it was established with so much sacrifice so long ago.
[ link to this | view in thread ]
James Burkhardt (profile), 21 May 2015 @ 6:47pm

Re: Scale
Well, you know, the court just ruled they were doing something wrong. The thing about rights is, you have to apply them universally.
[ link to this | view in thread ]
art guerrilla (profile), 21 May 2015 @ 7:34pm

Re: Re:
to anon cow at 312:

au contraire, mon frere, these horrible exemplars are the best *BECAUSE* our fundamental (and as other posters point out, INHERENT) rights are given primacy over the appearance (or actual) 'guilt' of the perps...
the least sympathetic, 'most guilty' perps make the best case law/precedent, *BECAUSE* any situation to follow which falls short of that, *now* is golden...
makes it difficult for future persecutors to move the goalposts...
besides, 'our' (sic) system *used* to be about 'better 9 guilty men go free, than one innocent man is tried and convicted unjustly'...
now, we're *all* guilty of something: only a matter of if (when?) sauron turns his evil eye your way, and you are dead hobbit-meat...
[ link to this | view in thread ]
JMT (profile), 21 May 2015 @ 8:01pm

Re: Re:
You seem to be confusing meth with pot. Completely unlike pot users, people on meth are inherently dangerous, and can act in unpredictable and violent ways. She did deserve to get arrested, but not in a manner that violated such important rights.
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 8:11pm

Heaven help me should I get stopped with my computer tools in the vehicle. Inside the case is a syringe, along with a bit of plastic tubing. The tubing all of 2" long.

You'd have to be awfully desperate to use it as a syringe, even though it looks exactly like one. You see, it doesn't have a point, it doesn't possess a sharp edge to penetrate skin. The needle ends in a flat squared off edge. The tube goes over the needle and it was what I used to refill the water tank on a water cooled computer.

But hey, it looks like drug paraphernalia.
[ link to this | view in thread ]
Bergman (profile), 21 May 2015 @ 8:12pm

Re: Scale
If the only possible use for scales was weighing drugs, then your point would be valid.

But that's not the only possible use. It's not even the majority of the uses scales are put to. Possession of a scale isn't illegal in itself either.

Therefore possession of a scale proves absolutely nothing other than the person possesses a scale.

Some people have bad skin. Some people get drunk and ride as passengers because DUI is illegal. Glassy eyes can be caused by any number of things, including tricks of the light -- I myself get glassy eyed when I've gone more than 24 hours without sleep, and I've never taken anything stronger than Tylenol in my life (full disclosure: I had surgery once that involved general anesthesia, but I didn't apply it myself).

The totality of the circumstances added up to the fact that there was no probable cause to search or arrest the passenger.
[ link to this | view in thread ]
Bergman (profile), 21 May 2015 @ 8:29pm

Re:
I'm diabetic. I routinely have syringes and vials full of liquid (insulin) on me, especially when on trips lasting multiple days. I also work in IT, and I have a syringe very similar to yours in my toolkit.

Insulin has an odd side effect on me -- frequent insomnia. When I go over 24 hours without sleep, I get glassy eyed.

I don't smoke, I don't drink alcohol, and the strongest drug I've ever self-administered is Tylenol. But going by physical appearances and what you'd find in my backpack, I MUST be a drug addict!
[ link to this | view in thread ]
Anonymous Coward, 21 May 2015 @ 8:59pm

Reminds me of Night Watch:

"Raising the flag and singing the anthem are, while somewhat suspicious, not in themselves acts of treason."

RIP
[ link to this | view in thread ]
David, 21 May 2015 @ 10:50pm

Re: Re:
No, the court just decided they weren't.

The court did no such thing.

What the court decided is that if the courts set limits for the reasons to search someone, holding the police to those limits is not cause to remove them. Because that would be absurd. A right that you only have as long as you don't want it is no right.

So all the court does is removing the resulting tainted proof for the determination of those people's guilt. Which makes it less likely that the suit against them will be succeed. And it may get thrown out of court altogether if it becomes impossible to create a situation where a decision is made without the knowledge of those findings interfering.

Remember Daniel Ellsberg? He went free for the leaking of the Pentagon Papers because the judge ruled that in a quagmire of break-ins by government workers, blackmail, taped conversations and other misconduct by colluding prosecution and government, delivering justice was beyond his capabilities and the case was tainted beyond recovery.

That's not a clearing from all charges. It's just an admission that justice can't be served, so there will be no further attempt to do so.

Now this case is not as high-profile, so it may be possible to find an untainted jury. No idea.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 12:49am

Re: they are *recognized* or at least, they used to be
Rights, hmmm... Maybe, I dunno, "nostalgically reminisced about" or "given an affectionate yet patronizing nod"?
[ link to this | view in thread ]
Ninja (profile), 22 May 2015 @ 3:57am

inconsistent travel plans

Although furtive behavior may contribute to probable cause

I don't think any of these should contribute to probable cause or something. There are people who naturally creep others out or seem to be furtive every time. This does not mean they should be treated as guilty. Same for inconsistent travel plans. What if the person doesn't want to tell where they are going and are inventing something on the fly? Is this a crime?
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:14am

Re: Re: Re:
"It's just an admission that justice can't be served, so there will be no further attempt to do so."

Is this why no one prosecuted wallstreet bankers?
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:16am

Re: Re: Re:
She was not acting violent at the time of the arrest, therefore she did not deserve being arrested. If you truly advocate locking up drug users because of what they might do don't be supprised when you are locked up because someone thinks you might do something.

Like I said, she was simply riding in a truck driven by her husband, last I checked that was perfectly legal.

If someone wants to smoke crack and die of a heart attack, they should be free to do so.
If you personally think smoking crack is bad for people, then you personally try to get them help, don't force them to get help with the powers of the state.
If someone robs others to get money to buy crack, prosecute them for the robbery.
If you think it's a good idea to legislate morality, then accept without complaint when others force their version of morality onto you.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:17am

Re: Re: Scale
They should've charged the dude with rape because I presume he has the tool for it.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:17am

Re:
Too late
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:25am

Re:
Is possessing or ingesting a chemical depriving others of something?

Murders deprive others if life.
Kidnappers deprive others liberty.
Theifs deprive others of property.

Depriving others of their rights is criminal.

What's bad about possessing and ingesting a chemical?
You ingest chemicals every day to sustain your life.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 5:43am

This article is about a violation of rights, not about drug use. Keep on topic, or is your feelings about drug use caused by your deficient drug clouded brain that causes your thoughts to stray as it is impossible for you to stick with one subject?
[ link to this | view in thread ]
Padpaw (profile), 22 May 2015 @ 5:51am

Maybe the court can remind the police that if a citizen does not show them respect that is not grounds for beating them up as well, or shooting them in the face or back
[ link to this | view in thread ]
Padpaw (profile), 22 May 2015 @ 5:59am

Re:
police should do their job right, not break laws to out criminals away. That makes them no better than a vigilante then.

breaking a law(s) then there are options for them that do not include breaking their suspects rights. Being a cop does not automatically give them the right to ignore the laws they swore to uphold.

If you cannot do your job legally then you are no better and much worse than those you arrest.
[ link to this | view in thread ]
Padpaw (profile), 22 May 2015 @ 6:00am

Re: Re:
We would never have people dying to police brutality either
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 7:50am

Cops need a swear jar
Cops need their equivalent of a "swear jar". Every time cops egregiously violate Constitutionally protected rights, they must put X% of their annual budget into some fund that benefits the community (put it towards fixing up dilapidated parks or something similar).
[ link to this | view in thread ]
John Fenderson (profile), 22 May 2015 @ 8:27am

No matter what the court says
The police will consider anything other than complete, calm subservience to be suspicious behavior.
[ link to this | view in thread ]
Gwiz (profile), 22 May 2015 @ 8:36am

Re: No matter what the court says
The police will consider anything other than complete, calm subservience to be suspicious behavior.

Being "too calm" would probably be considered suspicious too.

From my understanding, a lot of police consider civilians to be one of two categories: perps and perps who haven't been caught yet.
[ link to this | view in thread ]
DB (profile), 22 May 2015 @ 10:48am

"You seem to be confusing meth with pot. Completely unlike pot users, people on meth are inherently dangerous, and can act in unpredictable and violent ways."

Are you sure?

I heard the same thing about pot growing up. From the government. The worst effect of any drug was attributed to all of them equally. Except cocaine, which was glamorous. Until crack cocaine, when cocaine was the worst drug of all.

In retrospect, the reputation of the drugs often reflected the characteristics of the stereotyped user. Disco cocaine was good. Ghetto crack was bad. Beatnik pot was good. Anyone else that smoked it turned into ambition-less stoners.
[ link to this | view in thread ]
Anonymous Coward, 22 May 2015 @ 1:30pm

Police State
[ link to this | view in thread ]
David, 23 May 2015 @ 1:45am

Re:
In retrospect, the reputation of the drugs often reflected the characteristics of the stereotyped user. Disco cocaine was good. Ghetto crack was bad. Beatnik pot was good. Anyone else that smoked it turned into ambition-less stoners.

Not terribly surprising. When evaluating the possible danger of some current, it makes little sense to disregard the mooring of the ship in question.
[ link to this | view in thread ]
Anonymous Coward, 23 May 2015 @ 4:01am

Re: Re: Rights
The concept would not have been alien to the Founding Fathers: English boroughs had for centuries had obligations of watch and ward included in their charters (mandating and empowering night and day patrols), the Bow Street runners were already established (providing arguably the first professional general-purpose state detectives, the coroners and reeves were originally what we'd now call detectives investigating deaths and corruption respectively), as were the Bow Street Horse Patrol (who conducted mounted patrols against highwaymen).
[ link to this | view in thread ]
JMT (profile), 23 May 2015 @ 8:04am

Re: Re: Re: Re:
"Like I said, she was simply riding in a truck driven by her husband, last I checked that was perfectly legal."

I'm sure you think this is a clever comeback, but she was not arrested for "simply riding in a truck". That point is completely irrelevant.

"If you think it's a good idea to legislate morality, then accept without complaint when others force their version of morality onto you."

This is not a moral argument, at least not from me, it's an entirely practical one. It's based on the fact that it's highly likely a meth addict will eventually turn to violent crime to maintain their habit, and others will suffer as a result. There's no such thing as a casual meth user.
[ link to this | view in thread ]
justme, 23 May 2015 @ 8:14pm

JMT,

We are off topic, but the hype your repeating is not based on fact. If you check your history, meth at one time was the most widely prescribed drug ever, and violence wasn't associated with it's use!

The whole meth users are violent, toothless, and schizophrenic zombies, is stupid, Having said that, people that don't eat will loose their teeth, people that don't sleep will tend to get schizophrenic, and violent people will be violent meth or not!
[ link to this | view in thread ]
Myamoto Musashi, 25 May 2015 @ 11:37am

Re: Re: Re: Re: Re:
This is just silly government propaganda that you've bought hook line and sinker. Most drug addicts aren't violent in any way and very few of them ever turn violent to support their habits. There are also countless high functioning addicts who are otherwise upstanding members of the community.
Your assumptions about meth users reveal you to be ignorant on the subject and it's people like you that are responsible for the insane incarceration rate in this country. Meth is addictive but you don't go through withdrawals the same way a heroine user does. You know what meth addicts dc when they can't get high? They crash and sleep. That's what.
[ link to this | view in thread ]
Sychodelix (profile), 12 Jun 2015 @ 4:21pm

Re: Re: Scale
It's very likely that in any of those situations, the scale would be stored in your house, shop or wherever, but not carried around with you. It is enough to be suspicious. No, it's not clear cut evidence, but it is enough reason for a search.
[ link to this | view in thread ]
noneya beeswax, 13 Jun 2015 @ 12:00am

Stupid
For all those people that think the woman should be arrested,

Quit being a dumbass, you dont know the law.
The law( the judge ) not a cop, clean up the mess the cop left for not doing there job correctly.
If i do the same i would be out of a job.
So i look at cops with contempt.

Thinking drug users should be locked up is wrong. (Yes this is my opinion)
The reason is this.
You should never OWN someone. That is make decisions for someone else without knowing what that person went through.
Why not find out what problem led them down that path.

By the way we should quit locking up the mentally ill. That will not make them any better,(republicans quit thinking the mentally ill are faking it.)
Doing dumb thing like this will tear this country apart.
[ link to this | view in thread ]