It's All About The Law™

I have been reading and hearing comments about the status of our rights. Since 9/11, everyone has increased awareness and concern for public safety.

The media and our elected representatives have created tension between our liberty and our safety. So I am writing this long post to give you a quick primer on the subject. Then you can make a more informed decision as to your choice.

Yesterday’s issue of the Lexington Herald Leader reported findings from a McClatchy-Ipsos poll. “The survey found 51 percent of Americans agreeing ‘it is necessary to give up some civil liberties in order to make the country safe from terrorism.’ ”

And today, CNN has a report from London, England. I am reprinting the full text so you know I’m not “Cherry Picking.”

The British government said Wednesday it will appeal a European court ruling that certain police stop-and-search powers are a breach of human rights.

Under Section 44 of Britain’s Terrorism Act 2000, uniformed officers may stop any pedestrian or vehicle and search them, regardless of whether they have reasonable suspicion of wrongdoing.

Human rights groups complain the rules are subject to abuse, but the British government calls the powers an important tool in the fight against terrorism.

British Home Secretary Alan Johnson said he was disappointed in Tuesday’s ruling by the European Court of Human Rights in Strasbourg, France, because the appeals had previously gone through the British courts and been rejected.

“We are considering the judgment and will seek to appeal,” Johnson said in a statement. “Pending the outcome of this appeal, the police will continue to have these powers available to them.”

London’s Metropolitan Police said that because of sensitivity and concerns about use of the stop-and-search powers, they are only being used at “pre-identified significant locations” like landmarks, tourist sites, and crowded places, or where certain police operations are taking place.

The case began in September 2003, when police stopped and searched two British nationals who were on their way to a London demonstration.

Kevin Gillan was on his bicycle and wearing a backpack when police searched him. He was allowed to go after about 20 minutes, the court said.

Pennie Quinton is a journalist who was on her way to cover the demonstration when police stopped and searched her, the court said. Police ordered her to stop filming even though she showed her press cards; the official record of her search said she was stopped for about five minutes, though she says she thought it was closer to half an hour.

Gillan and Quinton complained that the police use of the stop-and-search powers under Section 44 breached the European Convention on Human Rights — specifically their right to liberty and security, right to respect for private and family life, freedom of expression, and freedom of assembly and association.

The case reached the Law Lords, Britain’s highest court, but the Law Lords dismissed the appeal in March 2006 because they said they weren’t convinced the police search disrespected the plaintiffs’ private lives.

Even if the search did not respect the plaintiffs’ private lives, the Law Lords found, the procedure was in accordance with the law and was proportionate to counterterrorism efforts.

Gillan and Quinton then appealed to the European Court of Human Rights, which heard the case in May and issued its ruling Tuesday.

“It’s fantastic news after a long struggle,” Gillan said, in a statement issued by the human rights group Liberty, which took the case to court. “I look to the government for a strong response.”

Said Quinton, in another statement issued by Liberty, “There has to be a balance between private life and security. The court has shown that Section 44 is an invasion of people’s right to liberty and privacy.”

The court found that the “coercive powers” of the anti-terrorism legislation amounted to a clear interference with the right to respect for private life. This interference was compounded by the public nature of the search, because it brings an element of humiliation and embarrassment, the court found.

Legal safeguards were not adequate enough to curb the wide discretion police had to use the powers, the court found. It said that wide discretion was a cause for concern.

“The officer’s decision to stop and search an individual was one based exclusively on the ‘hunch’ or ‘professional intuition,’” the court wrote in its decision. “Not only was it unnecessary for him to demonstrate the existence of any reasonable suspicion; he was not required even subjectively to suspect anything about the person stopped and searched.”

Because officers have no obligation to show a reasonable suspicion, it is “almost impossible to prove that the power had been improperly exercised,” the court said.

As a result, the court said, the stop-and-search powers were not in accordance with the law.

Liberty called on the British government to ensure that Section 44 is only applied when authorities believe it is necessary to prevent terrorism. It should be applied to specific areas and for not longer than 24 hours, Liberty said, which would prevent authorities from applying the measures on a rolling basis and over large parts of a city.

Liberty also called on the government to publish notice that authorization for Section 44 has been given.

Here in the U.S. we (should) look to our Constitution to understand our choice between liberty and safety. The Fourth Amendment of our Constitution says “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

There is much confusion about what the Fourth Amendment means. It is commonly referred to as the Search and Seizure amendment. To help reduce the confusion, here is an excellent overview of The Current Structure Of Search And Seizure Law. I redacted some portions for brevity. The link above will take you to the full text (so once again you know I’m not “Cherry Picking.”)

The current structure of search and seizure law
Search and seizure law today is built around three key questions. First, did the police “search” or “seize” anyone or anything? If not, the law leaves police action basically unregulated. If so, what justification must the police have—probable cause, reasonable suspicion, or (in rare cases) something else? Finally, what process must the police follow—must they seek permission in advance from a magistrate, or can they search first and defend themselves in a suppression hearing later?
The definition of “search” and “seizure.” The most important of these questions may be the first one, for if a given police tactic is not a “search” or “seizure” within the meaning of the Fourth Amendment, the police are free to use that tactic when and on whom they wish, free of legal constraint.
“Searches,” in Fourth Amendment law, are police tactics that infringe a “reasonable expectation of privacy.” A reasonable expectation of privacy is the kind of expectation any citizen might have with respect to any other citizen. A fair translation of this standard might go as follows: Police can see and hear the things that any member of the public might see and hear, without fear of Fourth Amendment regulation. Only when police cross that line, only when they see and hear things that members of the public would not be allowed to see and hear, has a “search” taken place.
A few examples might clarify the standard. Eavesdropping on telephone conversations is a “search.” Overhearing a conversation on the street is not. Climbing over a backyard fence is a “search.” Observing the same backyard from the window of an airplane is not. Hiding in the bushes outside a house and looking inside is a “search.” Standing on a public street and looking through open curtains into a living room is not. Opening a briefcase to inspect its contents is a “search.” Observing someone carrying a briefcase on the street is not.
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One other feature of the definition of “search” bears mention. Consensual transactions are not “searches,” even if consent was given under false pretenses. … Also, if a police officer asks permission to look in a suspect’s car or briefcase, and the suspect says yes, once again no “search” has taken place. This last point is particularly important. Police officers exert a certain amount of force just by virtue of their status. For many, perhaps most, a request from a police officer will sound like a command; the tendency will be to say yes whether one wants to or not. Nevertheless, if the police officer asks, and the suspect says yes, that almost always amounts to consent. Only if the officer behaves unusually coercively—if he pulls his weapon, or grabs hold of the suspect, or the like—will a court find that the consent was involuntary.
All these rules sound complicated; in practice, they are relatively simple. In general, the police are “searching” when they are either committing some kind of trespass—grabbing a suspect’s briefcase and looking inside, breaking into a house or apartment, climbing over a backyard fence—or are engaged in some kind of electronic eavesdropping—for example, wiretapping a phone. Most of the rest of what police do to gather information falls outside the Fourth Amendment.
“Seizures” are harder to define. The Supreme Court says that a suspect has been “seized” if a reasonable person in the suspect’s shoes would not feel free to leave. If the Court took its own language seriously, every conversation between a police officer and a citizen would be a “seizure.” After all, few people, when approached on the street by an officer, feel free to turn on their heels and walk away. The consequences of that position would be huge; the police would need some adequate justification for every interaction.
Not surprisingly, the law does not operate that way in practice. The working standard seems to be roughly the same as the standard for consent. The dispositive question is this: Did the police officer behave coercively (not counting the coercion that is inherent in a police officer questioning a suspect)? If so, the encounter is a “seizure.” If not, it is not. ….
Probable cause and reasonable suspicion. When the police have searched or seized someone, the Fourth Amendment requires some justification. With rare exceptions, the justification takes one of two forms: either the police must have probable cause, or they must have reasonable suspicion. The following paragraphs explain what these standards mean, and to what cases each standard applies.
Probable cause has never received a clear definition in the cases; the Supreme Court has said, unhelpfully, that an officer has probable cause to arrest when “the facts and circumstances within [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed” Brinegar v. United States, 338 U.S. 160, 175–76 (1949). What that means in practice seems to be, roughly, more likely than not. Thus, probable cause to arrest requires enough information to show that the suspect probably committed the crime. Probable cause to search requires enough information to show that evidence of crime can probably be found in the place to be searched.
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Like probable cause, reasonable suspicion is not well defined in the cases. Indeed, the only thing one can confidently say about it is that reasonable suspicion means something less than probable cause. Just how much less is unclear. A good indication of the kind and level of information required is the following common fact pattern. A police officer, on foot or in his car, turns a corner on a city street in an area known as a locale for drug trafficking. A young man standing on a street corner sees the officer, turns, and runs in the other direction. The officer knows nothing about the young man other than that he was in a place where crime was common, and that he ran when he saw the police. Does the officer have reasonable suspicion?
In Illinois v. Wardlow, 120 S.Ct. 673 (2000), the Supreme Court said the answer is yes. Likewise, if police see a suspect in a place where drugs are often sold, and if the suspect has a series of brief conversations with people the police know to be drug users, most courts would say the police have reasonable suspicion. In these cases the police have some ground for suspecting criminality, but not a great deal. Reasonable suspicion is meant to capture that intermediate condition.
To what cases do these standards apply? Probable cause is the governing standard for arrests, and for searches of homes, cars, or personal effects. For arrests, the standard is probable cause to believe the suspect has committed a crime; for searches it is, with one important exception, probable cause to believe evidence will be found in the place sought. The exception is for searches “incident to arrest.” When the police make a valid arrest, they are permitted to search the suspect’s person, any belongings he has with him, and his car; if the arrest occurs at home, they may search the area within his immediate control. These searches incident to arrest are legal if the arrest is legal. Thus, probable cause to arrest authorizes not only arrests but also a good many searches.
Reasonable suspicion is the governing standard for brief stops, as where an officer detains a pedestrian for a few minutes or pulls over a car in order to ask the driver a few questions. Reasonable suspicion of the presence of a weapon is the standard for very brief searches, such as a pat-down or frisk of a suspect’s outer clothing. In practice, reasonable suspicion of the presence of a weapon tends to follow from reasonable suspicion of criminal activity. At least for serious crimes, judges tend to find that suspicion of the crime entitles the police to frisk the suspect in order to detect any weapons. The officer is, of course, entitled to check the contents of the pockets if this frisk turns up anything that might be a weapon. Naturally, the line between lumps that might be weapons and lumps that might be evidence of crime (drugs, for example) is a fine one. As a result, frisks for weapons tend to turn into frisks for either weapons or evidence.
The authority to frisk, or conduct a brief search, based on reasonable suspicion extends beyond the suspect’s clothing. If the suspect is in a car, the officer is entitled to briefly look through the car’s interior. If the suspect is carrying a purse or briefcase, the officer can briefly look inside, long enough to ensure that it does not contain a gun. And any evidence the officer finds during the course of such inspections is admissible.
Thus, given reasonable suspicion, officers can briefly detain pedestrians or pull over drivers of cars. Given reasonable suspicion of the kind of crime often associated with weapons, officers can briefly look around the car’s interior, frisk a suspect’s outer clothing, and open any containers (such as a purse or bag) that the suspect might reach to check for weapons. More extensive searches and seizures require probable cause.
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The role of substantive law. Probable cause and reasonable suspicion both refer to a level of probability, a likelihood that some asserted fact—the suspect committed a crime, or evidence of crime will be found in a particular place—is true. The asserted fact always involves crime. It follows that the meaning of probable cause or reasonable suspicion depends on what counts as a crime. To put it another way, to say that the police have probable cause to arrest a given suspect is to say they have reason to believe that the suspect probably violated some criminal statute. Whether the claim is right depends in part on just what behavior criminal statutes forbid. If enough criminal statutes forbid enough conduct, the police will have probable cause to arrest a large portion of the population.
Something much like this was true before the late 1960s. Loitering statutes made it a crime to hang around on street corners; vagrancy statutes made it a crime to be able-bodied but unemployed, or to be a “rogue” or “vagabond.” These open-ended prohibitions plausibly covered a large fraction of ordinary street behavior, at least by people the police might wish to arrest or search. Consequently, the police had something close to blanket authority to arrest or search a large portion of the population. The probable cause standard mattered little.
In the late 1960s and early 1970s, most loitering and vagrancy statutes were declared unconstitutional on the ground that they were unacceptably vague. States and cities responded with a wave of statutes and ordinances criminalizing loitering with intent to commit acts of prostitution or drug use; some jurisdictions went farther, passing laws forbidding loitering in the presence of members of gangs that themselves were involved in various sorts of criminal activity. In Chicago v. Morales, 119 S.Ct. 1849 (1999), the Supreme Court struck down one such law, declaring that it was, like older loitering and vagrancy laws, too vague, and that it infringed on individuals’ liberty to wander about on public streets free of official interference.
Morales was not a Fourth Amendment decision; the Court relied on the due process clause of the Fourteenth Amendment instead. But the Court’s decision may have a large impact on the scope of Fourth Amendment protection. Again, if “crime” covers enough territory, police will have reasonable suspicion or probable cause with respect to most people, and Fourth Amendment standards will, as a practical matter, cease to operate. Morales may suggest that, at least with respect to pedestrians, the Court will not permit that state of affairs to recur.
The story is different when it comes to automobile traffic. In many states, moving violations—speeding, changing lanes without using a turn signal, running a stop sign, and the like—are, technically, crimes. Since such rules are not strictly enforced in most places (to the extent that speeding is the norm on many roads), most drivers are, technically, committing crimes most of the time, which gives the police authority to stop a large fraction of drivers.
That authority can be exercised strategically. If police believe a given suspect is transporting drugs, but they lack the kind of support needed to satisfy the probable cause or reasonable suspicion standards, they can wait for the suspect to run a stop sign, or speed, or violate some other traffic regulation, then pull the suspect over, arrest him for the traffic offense, and search him and his car incident to the arrest—all the while looking for drugs. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that this sort of pretextual police search is permissible. As long as the police have probable cause to believe the suspect is doing something the state defines as a crime, an arrest is legal, and if an arrest is legal, so is a search incident to arrest.
Whren and Morales are thus in some tension. Whren gives police near-blanket authority to stop vehicles; Morales seems to forbid near-blanket authority to stop pedestrians. In both cases, the primary determinant of the scope of police authority is not Fourth Amendment law, but the law that defines crimes.
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Two problems
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Privacy. The dominant focus of the law of search and seizure is protecting privacy. “Privacy” here has a particular meaning—it is not some generalized right to be let alone; rather, it is the interest in being free from observation, the interest in not being seen or heard. That the law protects privacy in this limited sense is shown by the cases that define “searches,” which cover only police conduct that permits officers to see or hear things that ordinary citizens would not be able to see or hear.
Notice that the interest in liberty receives less protection. Searches of private homes require probable cause and a warrant. Probable cause, with no warrant, suffices for an arrest outside the home—even though an arrest can lead to detention in the police station. The interest in being free from police violence receives, if not less protection, less attention, which may amount to the same thing: The number of excessive force claims brought against police officers is but a small fraction of the number of suppression motions based on allegedly illegal car searches.
The law’s focus on privacy sits uncomfortably together with its focus on regulating the police. Administrative agencies like the Internal Revenue Service arguably invade people’s privacy more than the police—think about the kinds of information people must supply on their tax forms. If one really wished to protect privacy, then, a natural way to do so would be to regulate with some care what questions the IRS can ask and how it can ask them. Yet Fourth Amendment law has almost nothing to say about those topics. At the same time, it has a great deal to say about questions like when the police can inspect the inside of a paper bag, or look inside the glove compartment of a car—trivial privacy invasions, one might think, compared with tax forms. In other words, search and seizure law protects privacy, but only when the police infringe it. That seems an odd way to protect privacy.
And protecting privacy may be an odd way to regulate the police. Police do two things that other government agents—grand juries, prosecutors, or administrative agencies—do not. Police arrest people, which means removing them from their homes and locking them up. And police beat, sometimes shoot, people as a means of obtaining and maintaining control over them. If one were to imagine a body of law whose goal was specially to regulate the police, one might expect that law to focus on those two things: on regulating police ability to deprive suspects of their liberty and, perhaps especially, on limiting police ability to injure or kill suspects. Fourth Amendment law does some of that. But it focuses more on privacy interests, on searches of homes and cars and paper bags, and less on other, perhaps more important goals.
Race discrimination. One of those goals might be to eliminate police discrimination on the basis of race. African Americans suffer a disproportionate share of arrests and prison sentences. Much of that disproportion flows from differences in crime rates across population groups, but some of the disproportion may be a consequence of discriminatory targeting of suspects by the police. Perhaps surprisingly, Fourth Amendment law does little to stop that sort of discrimination. Given the breadth of criminal law, police have probable cause to arrest or reasonable suspicion to stop a large portion of the population—when it comes to vehicular traffic, a large majority of the population. Within this pool of potential suspects, police can target whom they wish; Fourth Amendment law basically says nothing about their exercise of enforcement discretion. So if police officers stop large numbers of black drivers, ostensibly for speeding but primarily to check for drugs, and stop few whites, the black drivers have no legal claim.
This is true notwithstanding the fact that a number of courts forbid the use of race as a factor in police “profiles.” Such profiles are common in drug investigations; they basically list factors common to drug couriers in particular markets at particular times. Officially, race is a forbidden factor, but officers can easily take race into account without acknowledging that they do so, and for now, the law tolerates that.
Another form of potential discrimination involves the targeting of some kinds of crimes, and some neighborhoods, more severely than others. In the late 1980s and early 1990s, urban crack markets received more police attention than suburban markets in cocaine powder. Most crack defendants were black; most cocaine powder defendants were white. One could argue that the strong tilt against crack was, on balance, a good thing; one could also argue that it was socially harmful, in part because of the racial composition of the two pools of defendants. Whichever answer is right, the current law of search and seizure leaves the question wholly to the police.

Too many of us forget the first three words of the U.S. Constitution – We The People. We forget that it’s up to us as citizens to take an active part in our government. We forget it’s up to us as citizens to make informed decisions who we will vote for and why we are electing the person we’re voting for.

So if you have read this far, here are your two choices:

(1) Do you choose liberty? Do you choose to exercise the freedoms given to you by our Constitution? Do you choose to become active in your government? Do you choose to educate yourself so you can make informed decisions?

Or

(2) Do you choose safety? Do you choose to rely on your elected representatives to choose for you? Do you choose to allow others to control your liberty in the name of your safety?

As you read and think about this, remember what Benjamin Franklin said: “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

Do you agree or disagree with what I’m saying?

Please post your comments and opinions on this subject.

Thanks,
Larry