Above Photo: Supreme Court Justice Sonia Sotomayor. Justin Sullivan/Getty Images
Note: The drug exception to the bill of rights continues. I started writing about this in the early 80s as every year the drug war inevitably failed the Supreme Court gave the drug police more power, weakening the Bill of Rights. Of course, more police power, more arrests, more people in jail and more money spent on the drug war could not save a misconceived policy that puts police in charge of a public health issue. The government continues to use the wrong tool to force a square peg into a round hole.
Sadly, the erosion of the Bill of Rights in the name of the drug war is continuing. This week in Utah v. Strieff the court upheld the power of police to stop people for no cause and look for outstanding warrants. This will be devastating to communities of color. Sotomayor did a good job of making the impact clear and how this is not something in isolation but practices that are already too common in policing around the nation.
From an article I wrote in 1989, here are some of the key cases that eroded all of our rights in the name of enforcing the failed drug war:
- Without probable cause (i.e., reliable information that a certain individual has committed a specific crime), airport police can stop, detain and question travelers who fit a drug-courier profile, a broad set of characteristics that supposedly resemble most drug dealers. Florida v. Royer, 460 U.S. 491 (1983); Florida v. Rodriguez , 469 U.S. 1 (1984); United States v. Montoya de Hernandez, 473 U.S. 531 (1985).
- Dogs may be used to sniff’ a traveller’s luggage without probable cause. United States v. Place, 426 U.S. 606 (1983).
- Police are permitted to search automobiles and inside containers (i.e., glove compartments, briefcases, trunks, etc.) without a warrant. United States v. Ross, 456 U.S. 798 (1982).
- Police can conduct surveillance of suspects with a transponder or beeper placed in the glove compartments, briefcases, trunks or other places inside vehicles. United States v. Knotts, 460 U.S. 276 (1983).
- Police are allowed to search boats on inland waterways without probable cause. United States v. Villamonte-Marquez, 462 U.S. 579 (1983).
- Police can acquire a warrant based on an anonymous tip from a faceless informant and search a private home. Illinoisv. Gates, 462 U.S. 213(1983).
- Police are permitted to search private property surrounded by fences and “no trespassing” signs without a warrant. Oliver v. United States, 466 U.S. 170 (1984).
- Police are permitted to search barns adjacent to a residence without a warrant, United States v. Dunn, 107 S.Ct. 1134 (1987).
- Police are permitted to question motorists without suspicion of criminal activity at a roadblock. Texas v. Brown, 460 U.S. 730 (1983).
- Police are permitted to search backyards without a warrant while flying in an airplane. California v. Ciraolo, 476 U.S. 207 (1986).
- Police can inspect bank records without the consent of the customer. United States v. Miller, 425 U.S. 435 (1976).
- Police can record telephone numbers dialed from one’s home tele-phone without the consent of the tele-phone subscriber. Smith v. Maryland, 442 U.S. 735 (1979).
- Police can secretly tape record telephone or face-to-face conversations without consent of the party recorded and without a warrant. United States v. White, 401 U.S. 745 (1971).
- Police can secretly read or inspect materials in a person’s trash bag without a warrant or probable cause. California v. Greenwood, 108 S.Ct. 1625 (1988).
It is long past time to end the war on drugs and when we do so we need to reverse many of these cases to restore our rights and correct the balance between police and the people. KZ
Read Sonia Sotomayor’s Atomic Bomb of a Dissent Slamming Racial Profiling and Mass Imprisonment
The Supreme Court issued an extraordinarily disappointing 5–3 decision on Monday in Utah v. Strieff, a Fourth Amendment case about police searches. Yet the terrible ruling came with a bright spot: In a powerful and groundbreaking dissent, Justice Sonia Sotomayor lambasted the majority for its heartless and illogical rejection of Fourth Amendment freedoms, invoking the Justice Department’s Ferguson report, echoing Black Lives Matter, and even citing Ta-Nehisi Coates.
Strieff itself involves a fairly simple question of constitutional law. Typically, when police illegally stop an individual on the street without reasonable suspicion, any fruits of that stop—such as the discovery of illegal drugs—must be suppressed in court, because the stop was “unreasonable seizure” under the Fourth Amendment. Strieff gave the justices an opportunity to affirm this constitutional rule. But instead, Justice Stephen Breyer joined the court’s four conservatives to add a huge loophole to that long-established doctrine. In an opinion by Justice Clarence Thomas, the court found that if an officer illegally stops an individual then discovers an arrest warrant—even for an incredibly minor crime, like a traffic violation—the stop is legitimized, and any evidence seized can be used in court. The only restriction is when an officer engages in “flagrant police misconduct,” which the decision declines to define.
Sotomayor, who dominated oral arguments in Strieff, refused to let the majority get away with this Fourth Amendment diminution without a fight. In a stunning dissent, Sotomayor explains the startling breadth of the court’s decision. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong,” Sotomayor writes, in a dissent joined in part by Justice Ruth Bader Ginsburg. “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”
“Most striking about the Court’s opinion,” Sotomayor notes “is its insistence that the event here was ‘isolated,’ with ‘no indication that this unlawful stop was part of any systemic or recurrent police misconduct.’ ” But in truth, “nothing about this case is isolated.” Sotomayor then dives into the widespread police misconduct that has dominated headlines for several years, focusing on the Department of Justice’s Ferguson report to demonstrate that “outstanding warrants are surprisingly common.”
The Department of Justice, Sotomayor writes, “recently reported that in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.” That means 76 percent of Ferguson residents have, under the court’s decision, effectively surrendered their Fourth Amendment right against unreasonable seizure. “In the St. Louis metropolitan area,” moreover, “officers ‘routinely’ stop people—on the street, at bus stops, or even in court—for no reason other than ‘an officer’s desire to check whether the subject had a municipal arrest warrant pending.’ ”
But Sotomayor’s bravest moment arrives when she announces that, “writing only for myself, and drawing on my professional experiences, I would add that unlawful ‘stops’ have severe consequences much greater than the inconvenience suggested by the name.” (Sotomayor cites previous opinions, citations that I’ve excised for clarity.)
This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. … If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”
The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.
“It is no secret that people of color are disproportionate victims of this type of scrutiny,” Sotomayor continues, citing Michelle Alexander’s The New Jim Crow and Ta-Nehisi Coates’ Between the World and Me:
For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.
Finally, Sotomayor builds to her jaw-dropping peroration:
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
Sotomayor’s dissent is not just an effective rebuttal to the Strieff majority (though it surely is that). It is also a brutal and necessary indictment of an increasingly conservative court’s repudiation of the Constitution’s most important safeguards against police misconduct—and a reminder that this weakening of Fourth Amendment freedoms has especially dire consequences for America’s minority and low-income communities. In the history of the United States Supreme Court, no justice has mixed personal empathy, professional wisdom, and legal acumen as brilliantly as Sonia Sotomayor just did. It’s too bad her atomic bomb of an opinion had to come in the form of a dissent to such an awful ruling.