Police can not “rummage at will”

Last year, the US Supreme Court ruled that police are limited in conducting searches of vehicles without a warrant.

At the time, I had just been the victim of a blatently illegal car search by local police. So, I wrote favorably about that Court decision on May 19, 2009, see: Supreme Court car search decision a victory for privacy rights. I emphasized the strong language used by a conservative court, including Justice Scalia:

The court found that police can not “rummage at will”:

“the State seriously undervalues the privacy interests at stake. Although we have recognized that a motorist’s privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U. S. 106, 112- 113 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U. S., at 117. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment “the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.”³

The court found that police officer safety is not jeopardized and that police don’t even need these invasive powers:

“Contrary to the State’s suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand.”

The Scalia backed opinon (and he’s no bleeding heart liberal) concluded that police practices in question were “anathema” to 4th amendment privacy protections:

“Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State’s arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals’ privacy.”³

A year later, today, the Star Ledger reports that vehicle searches are down – as expected – but that requests for “voluntary consent” searches are up by a staggering 32%.

More “consent” searches are bad news, because first of all, everyone knows that a roadside request by an armed cop is highly coercive, and that any consent given under these conditions can never be “voluntary”.

But worse, consent searches are a frequent tactic in “The War on Drugs” and are highly prone to racial profiling and other discriminatory abuses. Such searches are not limited to vehicles, and are often done on city streets, typically of black youth and young men. In addition, police engage in “pretext stops” of vehicles and courts have found that any pretext is valid and that a police officer’s motivations can not be questioned.

I urge folks to read Michele Alexander’s book “The New Jim Crow“ for an in depth discussion of these and related police and prosecutorial practices that have resulted in huge racist disproportionate jailing of black men.

And to illustrate just how extreme and out of touch with basic constitutional rights State Police attitudes are, consider the fact that conservative right wing Justice Scalia admonished police with the strong phrase: the police could not “rummage at will“.

Yet NJ State Police spokesperson sees the Court’s decision as exerting a “chilling effect”:

Dave Jones, president of the State Troopers Fraternal Association, said the court decision and resulting guidelines have a “chilling effect” on troopers’ ability to do their jobs.

“You smell it, you see it, you hear it” that used to be good enough as a professional,” he said. “They put in a mechanism to create hurdles so cumbersome you couldn’t continue the search.”

That’s a crock of shit!  I think the state troopers just need to chill out!