The lengths to which the courts allow the Fourth Amendment to be stretched to its breaking point
Fairfax County Virginia criminal defense lawyer on the necessity to return teeth to the Fourth Amendment. Pursuing the best defense for a quarter century
I would nearly worship at the altar of the Fourth Amendment if the courts gave its words real teeth:
“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.”
U.S. Const. Amend. IV.
Alas, over the decades the Supreme Court and other appellate courts have defanged the Fourth Amendment too much, inserting balancing tests to make police work easier when the Fourth Amendment says nothing about balancing individual rights against assisting the efficiency and enhancing the crime discovery of police , and watering down investigatory stops to only require reasonable articulable suspicion of criminal activity afoot, rather than probable cause. Terry v. Ohio, 392 U.S. 1 (1968).
This entire state of Fourth Amendment degradation is underlined by today’s Fourth Circuit case upholding a conviction for a handgun and cocaine base/crack cocaine found in a car where the search did not even begin until a full twenty-seven (27) minutes after a stop for nothing other than suspicion of windows tinted more darkly than allowed by law. U.S. v. Palmer, ___ F.3d ___ (4th Cir., April 21, 2016). Sadly, even if the police officer stopped Palmer’s car under the guise of wanting to investigate for jailable offenses under the pretext of stopping for window tint, the Supreme Court unwisely has allowed such pretextual stops for two decades. Whren v. U.S., 517 US 806 (1996).
From there, the stopping officer in Chesapeake, Virginia, dithered around. Rather than simply issuing a payable summons for window tinting too dark and letting Palmer go on his way, the officer went on a fishing expedition that to my mind was of the level and length (timewise and action-wise) of intrusiveness that not only violated the Fourth Amendment, but was also antithetical to living in a non-police state. However, we do live in a police/national security state, brought on during if not before the Cold War, not helped by police enforcing racial segregation, further entrenched by the drug wars, and even further entrenched by the seemingly never-ending war on terrorism.
The stopping police officer only claimed to have smelled a faint odor of marijuana (not until sticking his head without permission into the car), but an overwhelming odor and sight of air freshener upon first talking with Palmer, leading him to suspect the air freshener’s use to mask contraband, only ultimately to have found no stinky contraband, seeing that the discovered handgun and crack cocaine would not have had a strong smell.
And when did the police officer smell the faint odor of marijuana? Not until he stuck his head into the passenger compartment — without permission to do so — claiming to have thought the car’s inspection sticker was fraudulent, only to learn it was not, by looking at its back.
Why did the officer linger so long rather than simply let driver Palmer go on his way with a summons or warning for excessive tint? Because the officer called for a drug sniffing dog and had to wait a long time for the dog’s arrival, wanted to check Palmer’s criminal record (Palmer had four prior drug related arrests and an arrest for possession of an illegal firearm, and an apparent felony conviction) but did not know the readily available quicker way to do that, saw Palmer was more nervous than most traffic stop subjects, had information that Palmer was a suspected gang member, and had been stopped in a neighborhood that was a high crime area (where “high crime” areas often reference lower-income neighborhoods; “high crime” area should not be used as an excuse to victimize people who just happen to live and visit there).
Police being human, they are far from immune from prevaricating. Was the police officer really dithering so that he could await the delayed arrival of the drug sniffing dog?
The drug dog alerted for illegal drug(s), and the police found cocaine and handgun in Palmer’s car. The trial court and Fourth Circuit upheld this Fourth Amendment violative lengthy detention and search.
And if you don’t think the police would ever overstep on your own privacy toes, just see what happens if you drive a black car from a claimed source drug city on a “known” drug transportation corridor? Of course, if one is a young black male, his chances of a police traffic stop are enhanced no matter what kind of car or state of registration is involved. The first officer was unable to ticket me for anything other than exceeding the speed limit rather than stating a specific speed. The second officer claimed he stopped me for driving “slower than the rest of traffic,” to which I replied “I slowed down once I saw you, not wanting to receive a second speeding ticket for the day.” When the second officer told me I was free to leave, I asked: “Am I correct that my car’s being black and license plate’s being from a so-called drug source city influenced your decision to stop my car?” He replied with embarrassed silence, and I continued to beautiful Myrtle Beach.
This police state still exists because too many people support and tolerate it, and because it has taken on a life of its own. The police state can still be reversed, but we need to work together and doggedly to reverse it.