Search and Seizure

  • October 31, 2012
    Guest Post

    By J. Amy Dillard, Associate Professor of Law, University of Baltimore School of Law

    This morning, the U.S. Supreme Court will hear two cases that address whether the sniff of a dog constitutes a search of a home under the Fourth Amendment and whether a trained drug-sniffing dog’s “alert” gives probable cause for a warrantless search of a vehicle. 

    Where citizens have very low expectations of privacy like the exterior of luggage in an airport terminal, the Court has held that the warrantless sniff of a dog does not violate the Fourth Amendment. But in Florida v. Jardines, a trained police dog, without a warrant, sniffed the front porch and door of a home, where the occupant’s Fourth Amendment privacy interests were at her strongest; he alerted that drugs were within the home by sitting down at the front door. Based on the dog’s alert, police obtained a warrant to search the home and found marijuana plants. At issue in Jardines is whether the defendant had a Fourth Amendment interest in protecting the exterior of her home from a sniffing dog. In Florida v. Harris, the Court must address the reliability of a trained drug-sniffing dog and determine what evidence the government must offer of that reliability when the dog provides the fundamental piece of evidence supporting probable cause to justify a warrantless search of a vehicle. In Harris,a police officer responded to an alert by a trained police dog on the exterior handle of a vehicle and, relying on that dog’s alert, entered the vehicle without a warrant and seized drug contraband. 

  • October 15, 2012

    by Joseph Jerome

    While most Americans continue to think of unmanned aerial vehicles, commonly called drones, as one tool in the United States’ overseas fight against terrorism, their domestic use is rapidly on the rise. For example, the Federal Aviation Administration says upwards of 30,000 drones “will fill the nation’s skies in less than 20 years.” As drone manufacturers eagerly await a piece of the $89 billion market for UAV production and technology, a September poll by The Associated Press and the National Constitution Center discovered that more than a third of Americans are concerned about the privacy implications of domestic drone usage. 

    While several measures have been introduced in Congress to require police seek warrants before using drones to engage in domestic surveillance, there still remains a role for the Court in strengthening Fourth Amendment protection against unreasonable searches. Responding to increasingly sophisticated wiretaps, the Warren Court recognized that the Fourth Amendment protects an individual’s “reasonable expectation of privacy” in Katz v. United States. At first blush, the use of domestic drones appears to be an extension of the Supreme Court’s decision that Americans have no reasonable expectation of privacy in being surveilled from above, but like bugging a phone in 1967, the practical and technical capabilities of drones suggest the time has come to reevaluate how we understand Fourth Amendment protections.

    The sophistication of drones reveals two key flaws in how the Supreme Court has understood our reasonable expectation of privacy. First, the high court has tied privacy to societal expectation of privacy, creating a degree of circularity in its doctrine. Judicial rulings are to be guided by societal expectations, but societal expectations are necessarily influenced by judicial rulings.  More problematic, as law professor Derek Bambauer explains, this produces a one-way ratchet against privacy since “government can reduce our reasonable expectations of privacy by abusing our privacy.”  Some members of the Supreme Court have conceded that a “tradeoff” of privacy for convenience and security may be both “worthwhile” and “inevitable.”

  • July 27, 2012

    by Jeremy Leaming

    The New York City Police Department’s numbers on its stop-and-frisk policy tell a damning story of city authorities unconcerned about civil liberties or racial profiling, and how its policy adversely affects numerous communities.

    But a new report adds to the bleakness of the story. That report from the Center for Constitutional Rights (CCR) fills out the already tawdry tale with the “human stories behind the staggering statistics and sheds new light on the breadth of impact this policy is having on individuals and groups, in neighborhoods, and citywide.”

    The statistics, which CCR helped disclose, reveal that in 2011, NYPD officers stopped more than 680,000 people, 84 percent of them were black or Latino. Moreover, 88 percent of the stops produced no arrests.

    A Pace University law professor told The New York Times that people “are starting to wonder: ‘What’s really going on here? Is this a racial policy?”  

    The numbers say it most certainly is. Yet the city’s long-serving mayor is adamant that the policy saves lives, prevents crimes. But Michael Bloomberg’s rhetoric remains just that, especially when the vast majority of stop-and-frisks produce no arrests.

    And in May, U.S. District Court Judge Shira A. Scheindlin permitted a class-action lawsuit against the city’s frisking policy, saying she was seriously concerned about officials’ “troubling apathy towards New Yorkers’ most fundamental rights.”

    Scheindlin also noted that the Constitution’s Fourth Amendment bars government, including the NYPD, from conducting unreasonable “searches and seizures.” Moreover, she pointed to the Constitution’s 14th Amendment barring government officials from depriving individuals of liberty, including their equal protection rights.

    The NYPD seems to have trouble understanding or working within constitutional parameters. The judge noted that between 2004 and 2009 the NYPD stopped and frisked a lot of people, 50 percent of them black, 30 percent Latino.

    From a series of interviews of people who have been stopped and frisked in the city, the CCR report reveals a policy targeting communities of color, the homeless, low-income people, among others.

  • July 12, 2012

    by Jeremy Leaming

    New York City’s leaders, most notably its billionaire mayor, are bent on supporting a stop-and-frisk policy that according to the police department’s own numbers overwhelmingly target minorities.

    Mayor Michael Bloomberg continues to defend the policy, which allows police officers to stop-and-frisk people in the city on suspicion of criminal activity.

    Recently Bloomberg took to a church in Brooklyn to trumpet the policy, saying, “We are not going to going to walk away from a strategy that we know saves lives.” And although he went on to claim city officials would strive to carry out stop-and-frisk “properly,” he has also denigrated Philadelphia’s efforts to reform its frisking policies. “Why would anyone want to trade what we have here for the situation in Philadelphia – more murders, higher crime?” he said in May.

    But numbers regarding stops and frisks show that the policy hardly deters crime, let alone saves lives. According to statistics from the New York Police Department more than 680,000 people were stopped in 2011 and in 88 percent of the stops no arrests were made.

    The numbers do, however, show that racial profiling is taking place. Of the nearly 686,000 people stopped last year 84 percent of them were black or Latino, The Times reports. Pace University law professor Randolph M. McLaughlin told the newspaper, “People are starting to wonder: ‘What’s really going on here? Is this a racial policy?”

    Noting that courts are increasingly assessing stop-and-frisk tactics, McLaughlin added, “And judges read newspapers too.”

    In May, U.S. District Court Judge Shira A. Scheindlin permitted a class-action lawsuit against the New York Police Department’s policy, saying she was seriously concerned about officials’ “troubling apathy towards New Yorkers’ most fundamental constitutional rights.”

  • April 26, 2012
    The Immigration Crucible
    Transforming Race, Nation, and the Limits of the Law
    Philip A. Kretsedemas

    By Philip A. Kretsedemas, an associate professor of sociology at The University of Massachusetts Boston

    For the past two years, the national debate over police involvement in immigration enforcement has focused on Arizona Senate Bill 1070. When it was first enacted, SB 1070 was widely criticized for the broad discretion it allowed Arizona police to question people about their legal status. Much of this criticism focused on the problem of immigrant racial profiling. Opponents of the bill argued that it opened the door for the indiscriminate interrogation of anyone who looks like an unauthorized migrant.

    Even though these complaints figured prominently in the public debate over SB 1070, it is rather telling that they have dropped out of the legal arguments that have been marshaled against the bill. One reason for this curious situation is that complaints about racial profiling and selective enforcement have historically been framed as violations of Fourth Amendment rights. But it also so happens that the legal challenge against SB 1070 is being led by the Department of Justice which, for obvious reasons, is not interested in setting legal precedents that would limit the search and seizure power of the police. The Supreme Court, which is currently deliberating over the DOJ's lawsuit against SB 1070, also has a history of favoring the discretionary powers of law enforcement over Fourth Amendment considerations.

    It is important to keep this context in mind when evaluating the legal arguments that are being levied against SB 1070. The DOJ is advancing a finely pitched argument which takes issue with the law making powers of local governments but not the search and seizure practices of law enforcement. It is also bears noting that the DOJ is not opposing local immigration laws on principle. The DOJ supported Arizona's employer sanctions law (penalizing businesses that hire unauthorized migrants) which was subsequently upheld by the 9th Circuit and Supreme Court. The federal government also doesn't seem to be opposed, on principle, to the involvement of police in enforcing federal immigration laws. The Obama administration has actually given state and local police new opportunities to enforce immigration laws. It has only taken issue with local enforcement practices that operate outside of the federal-local enforcement arrangements that have already been authorized by federal law.