Court Says Constitutional Violations By Law Enforcement Are Perfectly Fine As Long As They Happen Quickly

from the Easy-Drug-Busts-For-Lazy-Law-Enforcement-vol.-Whatever dept

Fri, Dec 11th 2015 3:39pm — Tim Cushing

The federal government needs to start working on across-the-board legalization of marijuana. Until it unites the nation under THC, this sort of bullshit is going to continue. (via FourthAmendment.com)

Any pretext can be used to make a traffic stop (thanks, SCOTUS!). Bad news is, driving a car opens a person up to a whole slew of warrantless searches under the "motor vehicle exception." Searches can be equally pretextual, perhaps even more so. And this particular search is the pretextualist.

As long as the stop isn't extended for too long (a wholly arbitrary length decided on a case-by-case basis during suppression hearings/civil rights lawsuits), cops are pretty much free to stop and search any driver for any reason. And even if they're completely wrong every step of the way, there's a good chance the "good faith exception" will excuse their misdeeds. (For everything else, there's qualified immunity.)

From North Dakota, best known for oil fields and being one of the states people tend to drive through, rather than towards.

While conducting drug surveillance, a Bismarck Police officer observed a vehicle with out-of-state plates. A detective working with the officer believed he recognized at least one occupant of the vehicle. Walker was a passenger in that vehicle. The detective asked the officer to pull the vehicle over if he observed it make a traffic violation. The officer observed the vehicle making an illegal left turn and stopped the vehicle.

So far, solid police work all around. Possibly suspicious person, albeit one that apparently didn't reside in Bismarck, much less the state of North Dakota. But whatever. Benefit of a doubt and all that.

Upon approaching the vehicle, the officer informed the occupants as to the reason for the stop, asked for their identification, and asked about their travel plans. They informed the officer they were traveling from Washington State to Indiana because the driver's mother was undergoing surgery. The officer also discovered that the vehicle was rented by Walker in Indianapolis and would be returned to that location. When asked, the occupants denied there was anything illegal in the vehicle.

Some suspicion there as the story doesn't quite add up.

The officer relayed the identification and travel plans to the detective, who did not recognize their names. A check of their information did not turn up any outstanding warrants or criminal history.

Free to go? Nope.

The officer requested permission to search the vehicle, which Asbach did not give as he did not rent the vehicle. The officer then spoke to Walker, who indicated he was a third cousin to Asbach and they were returning to Indiana because Asbach's mother was undergoing carpal tunnel surgery. The officer requested permission from Walker to search the vehicle, which he received. The length of the stop from beginning until consent was given was twelve minutes. No citation or warning had yet been issued. The officer did not tell Walker what he was searching for.

But the officer knew why he was searching the vehicle. It wasn't because he thought he recognized the occupant or that the ID check had returned anything notable. The search was predicated on where the vehicle was travelling from, and what could be acquired there.

Based on the occupants' travel plans, the officer's knowledge that marijuana was in some way decriminalized in the state of Washington, and that drug traffickers rent vehicles instead of using their own vehicles to transport drugs, the officer suspected the occupants were involved in drug trafficking.

"In some way decriminalized." There's nothing quite like an officer proceeding on hearsay evidence generated by his own slippery grasp of marijuana legalization.

A search of the interior of the vehicle did not uncover any criminal activity.

Free to go?

The officer requested that the trunk be opened. No request for consent to search the trunk was made, and no objection to searching the trunk was made. A number of items of luggage were discovered inside the trunk. No request for consent to search the luggage was made, and no objection to a search of the luggage was made by either occupant. A search of the luggage uncovered bags of items with marijuana leaves displayed on them which the officer suspected were edible marijuana products, as well as bags of raw marijuana. The officer did not inquire as to the ownership of each piece of the luggage prior to the search. Both occupants were then placed under arrest.

No consent obtained for the search of the luggage and trunk. Apparently, the lack of an objection was taken as permission to continue by the officer. But the evidence seized during this search was upheld. The court reasoned that the officer's implication that he was searching for narcotics (something apparently not vocalized -- "The officer did not tell Walker what he was searching for…") was sufficient to extend Walker's consent to search the interior of the vehicle to the contents of the locked trunk (and the contents of those contents). Further, it found that because the search did not extend the stop for an "unreasonable amount of time," everything was completely constitutional.

The dissenting opinion finds otherwise. As Justice Kapsner notes, the justification for the search was entirely bogus, what with the ID checks returning nothing incriminating and the narcotics detective not finding either of the vehicle's occupants to be known to him as drug traffickers.

Then he goes after the majority opinion's "reasonable amount of time" justification.

The majority's decision may seem reasonable given the officers' inquiries unrelated to the traffic stop were relatively quick, the time required to search a passenger vehicle is short, and it turned out Walker did, in fact, possess contraband. However, its holding articulates a rule that subjects citizens to constitutional violations merely because those violations can be completed quickly. Both this Court and the United States Supreme Court have stated law enforcement must conclude a seizure when the purpose for the seizure has been completed. See Rodriguez v. United States, 135 S.Ct. 1609, 1612 (2015); State v. Deviley, 2011 ND 182, ¶ 9, 803 N.W.2d 561. Yet, the rule the majority articulates today gives law enforcement the approval to use seizures as leverage for compelling citizens into self-incriminating action by simply prolonging detainment until the citizen acquiesces in the officer's demands: "If I can search your vehicle, I'll let you go." Extending seizures in this manner is contrary to our precedent and in conflict with United States Supreme Court holdings.

Unfortunately, that is the upshot of the Rodriguez decision. Rights can be violated, but the violations need to occur expeditiously. It would have been nice to see the court take a swing at the officer's "but they were travelling from a state where marijuana is legal" rationalization for the stop, but I guess we'll take what we can get. In this case, it's hardly anything. The evidence -- and the charges stemming from them -- remain valid.

This is already a problem. Opportunists in uniform are lying in wait on highways exiting states where marijuana sales are legal and busting people who have just made a wholly legal purchase. What's most disgusting about these acts is that it has zero impact on illegal drug trafficking and the earnest drug warriors making these busts are fully aware of this fact. Military gear, asset forfeiture, billions of dollars of funding -- all excused because it's the only way to stop the violence inherent in drug trafficking. And then they camp out on state borders, busting recreational users who present zero threat to anyone else.

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Filed Under: law enforcement, police stops, warrantless searches

32 Comments

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Anonymous Coward, 11 Dec 2015 @ 4:19pm

Tim Cushing, one of Techdirt's many armchair constitutional experts. Thank goodness there was a dissent to crib from!
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Anonymous Coward, 11 Dec 2015 @ 4:38pm

registration is a trap
Another thing that cops might want to look up is to see if the person's name comes up in a state's database of marijuana dispensaries or medical marijuana permits. Ditto for concealed handgun permits.

The fact that someone is doing everything legally and by-the-book in their home state means nothing when stopped in a state that considers it illegal contraband. Then the person becomes an automatic suspect that deserves to be searched ... all for simply obeying the law. This is why government-mandated registrations are a trap.
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Anonymous Coward, 11 Dec 2015 @ 4:50pm

That's what you get for driving down a drug corridor!
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tqk (profile), 11 Dec 2015 @ 5:55pm

Wa, wah, waaaaaaaahh! :-(
Tim Cushing, one of Techdirt's many armchair constitutional experts.

Says one of TD's many peanut gallery trolls. I notice you offer nothing of substance to add for discussion, just rolling by and spitting in the face of those giving you their efforts for free. You are truly a superior life form, on some planet out there but not this one.

Really, wtf did your effort add to the sum of anything, other than making yourself look like an ingrate fool?
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Anonymous Coward, 11 Dec 2015 @ 6:09pm

I have a copy of Reefer Madness around here somewhere...
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Anonymous Coward, 11 Dec 2015 @ 6:25pm

15 minutes to Constitution
Remember: you're always 15 minutes away from constitutional rights!
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Anonymous Coward, 11 Dec 2015 @ 7:21pm

let the revolution begin then. Or continue to live in a country where your rights are slowly eroded as its more convienent for the government and police to ignore your rights to get what they want faster.
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any moose cow word, 11 Dec 2015 @ 9:50pm

Even though marijuana should be legal nationwide, it's none to smart to carry bags of weed across state lines. If it's legal in your state, you've got to keep it in your state. Leave your stash a home. What is so hard to understand?
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Anonymous Coward, 12 Dec 2015 @ 4:50am

In this case i think dumb criminals made up illogical stories and got caught.

The occupants of the vehicle lie staying they are traveling from Washington to Indiana when infact they were traveling from Indiana to Washington then back to Indiana.

Carpal tunnel surgery is not something that is an emergency and would simply be scheduled. Very unlikely that you have to cut your vacation short because without notice your mom is having carpal tunnel surgery.

If I were a cop I'd easily conclude that they are likely hiding something and that something is likely marijuana since they drove to Washington and back and are providing me with misleading information as to why they are traveling.

If your going to be smuggling drugs and want to avoid a search you need a better story like: "we are on are way back home after visiting such and such national parks to go mountain climbing" and be sure you have clearly visible mountain climbing gear in your back seat. Show the cop some selfless on your phone with you hanging on a rope on the side of a mountain and be sure the geo tag and dates on the photo matches with the time and location you stated you were going. Be sure to have many photos because no one goes on such a trip without taking lots of photos. You better be knowledgeable of mountain climbing too so when the cop and you what some specific piece of equipment in you back seat is called you know it's name and purpose.
Now that the cop has evidence you are telling the truth and none that your lying he would have no reason to search your vehicle.
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JoeDetroit (profile), 12 Dec 2015 @ 7:10am

Re: registration is a trap
Here in Michigan the database of Medical users is supposed to be completely confidential, as far as that goes. Law enforcement is drooling at getting access to the database. They claim it is to avoid raiding the wrong home. Of course their first priority would be to be sure there are no leaks once they get access to it.
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Anonymous Anonymous Coward, 12 Dec 2015 @ 7:43am

Bending the Law
I wonder if anything special happens when Constitutional violations by Law Enforcement approach the speed of light?
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Rekrul, 12 Dec 2015 @ 9:15am

People in this country no longer have "rights", they have "privileges" which can be taken away at the whim of the police and the courts. We should rename the "Bill of Rights" to the "Bill of privileges".
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Ryunosuke, 12 Dec 2015 @ 9:38am

Re: Wa, wah, waaaaaaaahh! :-(
pretty sure that the constitution say "This is the law" not "This is the law, except for...."
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R.H. (profile), 12 Dec 2015 @ 9:39am

Re: Re: registration is a trap
There's currently a petition drive to get full recreational legalization on the ballot in Michigan for 2016. That would make the medical user list a null point wouldn't it?
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tqk (profile), 12 Dec 2015 @ 12:14pm

Re:
What is so hard to understand?

That the authorities still persecute marijuana possession maybe? I'm happy to live in a place where the cops have pretty much seen the light. They'll confiscate it if they find any on you, but nobody gets busted for possession around here any more. Every day just walking down the street, I can smell three people walking or driving by who're smoking it.

Weed should never have been made illegal. It was a foolish thing to do, and continuing to persecute users is ridiculous. We learned this lesson in Prohibition, or most everybody with any sense did. The cure was worse than the disease. It was never going to stop it, and trying to just ruins lives needlessly.
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vastrightwing, 12 Dec 2015 @ 1:11pm

Debt riddled government = opportunists
I look at this the same way I do red light cameras, "inspection" stops, texting, seat belt laws, plate readers: data mining for money. Period. Asset forfeiture. Break any law and you must pay us. As states become more debt riddled, the desperation goes up. I expect this behavior to exacerbate until morale improves.
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Anonymous Coward, 12 Dec 2015 @ 2:33pm

Re:
Unless you're black or have bundles of cash with you in which case the North Dakota Officer is (apparently)fully justified in shooting you 12 times in the back and "confiscating" the money.
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Anonymous Coward, 12 Dec 2015 @ 6:27pm

So a quicky at road side is OK but getting a room is a no no, got it.
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Atkray (profile), 12 Dec 2015 @ 8:48pm

Re:
You never want to show "law enforcement" and unlocked phone, that is inviting them to snatch it from your hand and search it because it is already open.
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afn29129 (profile), 13 Dec 2015 @ 9:44am

Never answer irrelevant questions.
Never answer irrelevant questions. "... and asked about their travel plans. They informed the officer they were.."
That was their biggest mistake. A person doesn't need to justify their origin or destination.
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daniel1 (profile), 13 Dec 2015 @ 11:10am

Never consent to a search
Remember, the Supreme Court said that if you don't want your silence used against you then you must not remain silent or risk your silence being used against you. Therefore, say, "I am going to remain silent; I want a lawyer; and I don't consent to any searches or seizures." Then you had better remain silent except to assert your rights, such as, "officer, I just told you that I don't consent to searches, quit searching."
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Whatever (profile), 13 Dec 2015 @ 8:03pm

Re:
"In this case i think dumb criminals made up illogical stories and got caught."

I think you hit the nail on the head. Were the cops fishing? Damn right they were. Did the fish bite? Oh yeah, more than hard enough to cobble together enough doubt to make pushing further a reasonable idea.

As for the dissenting judge, I think he missed the point here. The police appear to have done everything up to the consent for a search by the book. They stopped the car on a valid traffic violation (nobody made them break the law). The standard questions of engagement from the officer were answered in a pretty lame fashion. It took a few minutes to confirm who had the legal right to consent to the search. 12 minutes for a traffic stop isn't unreasonable, considering that the police had to check 3 sets of IDs, the car registration, and so on. 12 minutes isn't long at all. After the consent for search was given, there really isn't as much of a limitation of time.

"The search was predicated on where the vehicle was travelling from, and what could be acquired there."

This part of the story is NOT correct. The search was predicated on a flimsy story that did not make sense COMBINED with where the vehicle from travelling from, to, and what was often carried between those two points in rental cars. It's dishonest as hell to say the search was based solely on location.

You are correct AC, had they had a better story that would stand up to basic scrutiny, they likely would have skated pretty quickly. After that, it's pretty much a done deal. The search was consented to, and without any objection continued into the truck of the car. There is no real problem here.
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Anonymous Coward, 14 Dec 2015 @ 5:44am

Re: registration is a trap
What you are suggesting would be a violation of HIPAA laws regarding looking you up in a state database. It's a medical record.
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dakre (profile), 14 Dec 2015 @ 6:24am

So next time you ask if you're free to go, if they don't say anything, explain you interpret that as a yes because they did not give you any reason to stay. By their logic, it sounds reasonable.

Too bad that doesn't matter, because cops and sometimes judges.
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nasch (profile), 14 Dec 2015 @ 8:44am

Re: Re: registration is a trap
What you are suggesting would be a violation of HIPAA laws regarding looking you up in a state database.

And if there's one thing we know police departments are absolutely unwilling to do ever it's break the law.
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nasch (profile), 14 Dec 2015 @ 8:46am

Re:
Even though marijuana should be legal nationwide, it's none to smart to carry bags of weed across state lines.

Does UPS use drug dogs on their packages?
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nasch (profile), 14 Dec 2015 @ 8:51am

Re:
Probably better to just say "our travel plans are our own business" and "I do not consent to any search". You will probably be stuck on the side of the road for several hours, but if they do conduct a search (chances are they'll bring in a drug dog) there's a better chance it won't hold up in court. And if you lie to the officer about anything, you could get it trouble for that even if it has nothing to do with the drugs.
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nasch (profile), 14 Dec 2015 @ 8:59am

Re: Never consent to a search
Remember, the Supreme Court said that if you don't want your silence used against you then you must not remain silent or risk your silence being used against you.

That was such a travesty. Nowhere in the Constitution does it say you lose your rights if you don't proactively assert them. Pathetic.
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Bees!, 14 Dec 2015 @ 12:20pm

Re: Wa, wah, waaaaaaaahh! :-(
Isn't Tim an attorney?

*buzzzzz*
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Wendy Cockcroft, 15 Dec 2015 @ 6:07am

Re:
One presumes that you and everyone else who is calling for violence to erupt are waiting for someone else to get things started.

We all know you'll do nothing. I don't approve of violence. Can't you make more of an effort to build consensus among your peers and work within the democratic system?
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any moose cow word, 15 Dec 2015 @ 8:58am

Re: Re:
"Even though marijuana should be legal nationwide..." I agree that it should be legal, and stated as much.

The rest of my post was clearly in reference to the fact that we live in a country where it's only randomly legal at the state level.
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tqk (profile), 15 Dec 2015 @ 10:56am

Re: Re:
Can't you make more of an effort to build consensus among your peers and work within the democratic system?

What "democratic system?" Obviously, you know that the system we have now is no longer democratic. The front runners for the presidency are Clinton and Trump, ffs. Look at who the Brits just re-elected. Look at France's response to "Je suis Charlie"; both, civil rights into the dumpster.

Do you reason with a female bear as she storms down on you for getting between her and her cubs? To reason with someone presumes they're reasonable. It's pretty obvious to me that they're not. I'm not sure they're still capable of it even if they were inclined to, which they aren't.

You also shouldn't presume that random net revolutionaries will do nothing. They may not be the spark, but we'll all be part of the flame that results. Revolution will be ugly and lots of people will get hurt and killed, but pacifism in the face of violent predators will only get you killed quicker.

Mahatma Gandhi and MLK were wonderful people, but (most of) their opponents were capable of being reasonable. Our 21st century wanna-be-tyrants want it all yesterday, and resent our protestations. They're tired of being reasonable and are unwilling to tolerate the "slow and steady wins the race" strategy any longer. Everything they do these days screams that.
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