GUEST POST: The dog sniff cases: Amidst a sigh of relief, additional burden for public defenders

by Jonathan Rapping, President of Gideon’s Promise, an organization dedicated to training and supporting public defenders across the South.

Detection dogs have become a powerful weapon used in the effort to ferret out crime.  But because their use aids law enforcement at the expense of personal privacy, the practice has important Fourth Amendment implications.  The Supreme Court recently decided two cases that will help shape the way police use canines to interact with civilians in their quest to gather evidence of wrongdoing.  These cases address two important issues: when police may use canines to investigate civilians; and how the public can be sure these dogs are sufficiently reliable to protect against any unwarranted invasion of privacy.

In a case decided this week addressing the first issue, Florida v. Jardines, the Court drew a line at the doorstep to the home, holding that for police to bring a canine onto a person’s front porch to search for evidence inside the home violates the Fourth Amendment.  While this decision provided a sigh of relief to those of us concerned about our shrinking protections from police scrutiny, it is muted by the Court’s ruling last month in Florida v. Harris.  This case, which addresses the second issue, encourages more aggressive use of canines against civilians outside of the home.  By placing the burden on the target of the operation to prove that either the dog or its handler was unqualified, the Harris Court makes it difficult for victims of reckless policing to show that the police violated constitutional standards.  Because almost all canine/civilian encounters happen outside the home, the ruling will place ever more cumbersome burdens on the public defenders tasked with defending the vast majority of those affected by these rulings.

Supreme Court: No Detention of Offsite Occupants During Searches of Homes

By Christopher Doi

On February 19th, the Supreme Court announced that the detention of offsite occupants during a warranted search is an illegal seizure under the Fourth Amendment. In Bailey v. United States, law enforcement officers observed Bailey and another man drive away from the premises prior to the execution of a search warrant. The officers subsequently followed and stopped both men approximately a mile away. During a pat down of Bailey, the officers’ discovered a key to the searched premises.  The officers handcuffed and returned both men to the premises pursuant under the Summers rule. That rule  articulated in Michigan v. Summers, allows law enforcement officers to detain occupants while conducting their search. Bailey was charged with three drug and firearm-related federal offenses.  At trial, Bailey motioned to suppress the evidence of the key on grounds that it was obtained by during an illegal seizure under the Fourth Amendment. After both the district court and Second Circuit Court of Appeals denied the motion, the Supreme Court reversed, limiting the Summers rule to the immediate vicinity to be searched.  

Under the Fourth Amendment, detentions incident to the execution of a search warrant must be reasonable in that the law enforcement’s interest outweighs the intrusion on personal liberty. The government raised three law enforcement interests, under Summers, to justify the offsite detentions. First, the government argued that offsite detentions are necessary in order to ensure officer safety by limiting the risk  that individuals will return while the search is in progress, limiting the risk that officers conducting the search would have to confront  dangerous individuals, and limiting the risk that an individual offsite might alert other onsite occupants.  The Court rejected this argument, explaining that officer safety can be achieved through other non-intrusive means.

Second, the government argued that law enforcement interest in promoting efficiency of a search justifies the detention and return of individuals to the premises. The Court also rejected this argument, reasoning that only the detention of occupants in the immediate vicinity of the search is justified to prevent occupants from interfering with the ongoing search.  

Third, the government argued that it has an interest in preventing individuals from fleeing once incriminating evidence is discovered during a search.  The Court agreed that unrestrained occupants could adversely affect law enforcement if they believe the occupant could flee; however, the Court reasoned that allowing offsite detention was too broad and could justify any detention during the course of a search, even of a person ten miles away.

In an unusual alliance, Justices Breyer, Thomas, and Alito joined in a dissent arguing that the offsite detention was justified because the detention was effected as soon as reasonably practicable. However, six justices, including conservative Justices Anthony Kennedy and John Roberts, joined to hold that police can’t simply detain people far away from a property being searched. After Florida v. Harris, Johnson v. Williams, and Chaidez v. United States spelled a rough week for the rights of Americans accused of and charged with crimes, Bailey was a victory for the Fourth Amendment.

WHY JUDGES MATTER: Federal judge says an NYPD stop-and-frisk tactic is unconstitutional

In New York City it happened nearly 700,000 times in 2011:  Police stopped someone on the street.  During more than half those stops, the person also was frisked.  Eighty-four percent of the time it happened to people who are Latino or, like Nicholas Peart, African-American.  Peart wrote about it in The New York Times: 

One evening in August of 2006, I was celebrating my 18th birthday with my cousin and a friend. We were staying at my sister’s house on 96th Street and Amsterdam Avenue in Manhattan and decided to walk to a nearby place and get some burgers. It was closed so we sat on benches in the median strip that runs down the middle of Broadway. We were talking, watching the night go by, enjoying the evening when suddenly, and out of nowhere, squad cars surrounded us. A policeman yelled from the window, “Get on the ground!”

I was stunned. And I was scared. Then I was on the ground — with a gun pointed at me. I couldn’t see what was happening but I could feel a policeman’s hand reach into my pocket and remove my wallet. Apparently he looked through and found the ID I kept there. “Happy Birthday,” he said sarcastically. The officers questioned my cousin and friend, asked what they were doing in town, and then said goodnight and left us on the sidewalk. 

Less than two years later, in the spring of 2008, N.Y.P.D. officers stopped and frisked me, again. And for no apparent reason. This time I was leaving my grandmother’s home in Flatbush, Brooklyn; a squad car passed me as I walked down East 49th Street to the bus stop. The car backed up. Three officers jumped out. Not again. The officers ordered me to stand, hands against a garage door, fished my wallet out of my pocket and looked at my ID. Then they let me go.

I was stopped again in September of 2010. This time I was just walking home from the gym. It was the same routine: I was stopped, frisked, searched, ID’d and let go.

These experiences changed the way I felt about the police. After the third incident I worried when police cars drove by; I was afraid I would be stopped and searched or that something worse would happen. I dress better if I go downtown. I don’t hang out with friends outside my neighborhood in Harlem as much as I used to. Essentially, I incorporated into my daily life the sense that I might find myself up against a wall or on the ground with an officer’s gun at my head. For a black man in his 20s like me, it’s just a fact of life in New York.

On Tuesday, U.S. District Court Judge Shira A. Scheindlin, who was appointed to the bench by President Clinton in 1994, ruled that, at least in some circumstances, that “fact of life” is unconstitutional.

There are, in fact, at least three different stop-and-frisk programs in New York City that are the subject of lawsuits.  Tuesday’s ruling involves something called the Trespass Affidavit Program (TAP), a program in the Bronx in which property managers invite police to patrol their buildings and arrest alleged trespassers.

But Judge Scheindlin ruled that the police routinely stop people without reasonable suspicion that they are trespassing:

For those of us who do not fear being stopped as we approach or leave our own homes or those of our friends and families, it is difficult to believe that residents of one of our boroughs live under such a threat. In light of the evidence presented at the hearing, however, I am compelled to conclude that this is the case.

The judge added that

…the public interest in liberty and dignity under the Fourth Amendment trumps whatever modicum of added safety might theoretically be gained from the N.Y.P.D.'s making unconstitutional trespass stops outside TAP buildings in the Bronx.

In fact, many experts say there is not even a modicum of increased safety.  John Eterno, a retired New York City police captain, and a professor of criminal justice writes:

The N.Y.P.D. policy of aggressive stop and frisk in mostly minority neighborhoods is a dangerous and destructive practice that alienates minority youth and does little to fight crime. Similar policies have been tried in the past with catastrophic results. 

Former federal prosecutor Paul Butler notes that in Brownsville, an inner-city neighborhood in Brooklyn, “the average young man is seized and searched five times a year.”  He says this  “breeds disrespect for the law” and discourages potential witnesses from cooperating with law enforcement.  “The problem with stop and frisk is not only that it makes the citizens of New York less free,” Butler writes, “it also makes them less safe.”

●Read the full ruling here

● Also of interest: This excellent commentary on the ruling from Slate.

Courageous Schoolgirl's Fight Secures Rights for Millions of Students

Savana Redding, a 13-year-old, was subjected to a strip search at her middle school to determine if she was the source of ibuprofen pills among some fellow students. With Savana traumatized and humiliated by the search -- which found no drugs -- her mother sued the school district, the Vice Principal who gave the order, and the staff who conducted the search. Today, the Supreme Court relented in its assault on the rights of students by holding the strip search of Savana Redding unconstitutional.

The Court’s decision in Safford v. Redding regarding the constitutionality of the search, joined by every justice except Clarence Thomas, recognizes not only Savana Redding’s account of her search as embarrassing, frightening and humiliating but that adolescent vulnerability intensifies the exposure’s patent intrusiveness.

However, the Court denied Savana recourse for the unconstitutional humiliation she suffered. The majority determined that the school officials had immunity from liability because the law regarding school searches was not “clearly established.” As Justices Ginsburg and Stevens point out, the Court ignored its own precedent in reaching that determination. The Court has clearly stated that a school search “crosses the constitutional boundary if it becomes ‘excessively intrusive in light of the age and sex of the student and the nature of the infraction.’” As Justice Ginsburg bluntly states, “[The official’s] treatment of [Savana] was abusive and it was not reasonable for him to believe that the law permitted it.” Justice Stevens noted that this is “a case in which clearly established law meets clearly outrageous conduct.”

While today’s decision was not an unqualified triumph for Savana Redding, she has secured a victory for schoolchildren nationwide. Her battle to vindicate her own rights has led the Supreme Court to issue a ‘clearly established’ ruling securing the constitutional right of millions of American students to be free from a humiliating, unjustified and unreasonable strip search.