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Police Dogs Evoke New Controversy in Marijuana-Friendly States

From detective show dramas to Jay-Z lyrics, drug-sniffing dogs have become a widely recognized aspect of police work. In the past, these highly trained dogs have been bestowed not only with accolades from law enforcement, but legal status from the Supreme Court as not being an invasion into one’s expectation of privacy, and thus not a “search” for Fourth Amendment purposes.

police dogBut all of that may be changing soon.

Last year, the Supreme Court limited the use of drug sniffing dogs at private residences. While this doesn’t change their ability to sniff freely away at luggage or around cars, the police will need to meet a higher standard of probable cause (or your consent) before letting their dogs get their nose in your business at home. This development was rather monumental, considering that since the 80s police have been able to use police dogs to aid in searching for drugs with limited inhibition.

While limiting the use of dogs will likely not put them out of jobs, states that have legalized marijuana are forced to examine what place, if any, these pooches have with a police force. In Colorado, for example, where persons 21 years and older can legally posses 1 ounce of pot, the K9 units are put in a difficult position. For example, if a police dog alerts an officer to drugs on a person who is lawfully in possession, and that trigger leads to an unconstitutional, seizure, search, or arrest of that person, the police department faces potentially costly liability from violating that individual’s civil liberties.

This may not seem like too big of an issue since it there are many illegal drugs other than marijuana that dogs can detect. This fact, however, only makes the problem more complicated. Police dogs cannot be trained to differentiate between types of drugs by using different triggers. All the dog can do is bark, scratch, and dig when it detects a narcotic. A dog cannot be trained to roll over for cocaine, jump for methamphetamine and sit down for marijuana. The trigger is the trigger, and if it could have been set off by a legal substance, the officer ostensibly lacks probable cause to search. In essence, if someone is possessing several pounds of cocaine, which is illegal, and an ounce of marijuana, which is legal, a competent defense lawyer could get all of the evidence suppressed and the charges dismissed.

There are ways around this conundrum. In Washington, some police forces have stopped training new dogs to detect marijuana. The skill is simply not desired as marijuana is taking a lower priority to other more harmful narcotics. However, the question still remains: What will be done with the older dogs? They can’t unlearn smelling marijuana, and utilizing them for drug sniffing purposes may expose the police force to a myriad of lawsuits and complicated legal issues. Furthermore, even putting the dogs to work in other contexts, like bomb searches or searches for people near residences, may still lead to false triggers for drugs and therefore the potential for liability.

Moreover, these issues raise the question of whether we be using these dogs for drug searching purposes at all? Experts—and even advocates of drug sniffing dogs—admit that there is an alarming frequency of “false alerts,” where poorly trained officers and dogs essentially create probable cause by causing the dog to respond to their hand and not the presence of illegal substances.

These considerations, coupled with the developments in the legal landscape surrounding drugs and dogs, conjure an age-old question: can you teach an old dog new tricks?

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“Contempt of Cop” – The Law of Standing up to Police Officers

“Contempt of cop” is a popular phrase floating around the Internet lately. A play on words created by police officers and civil libertarians, the phrase describes a situation where a citizen disrespects the authority of law enforcement–from the perspective of law enforcement. Despite the connotation, contempt of cop is not actually a crime. In fact, it should probably be encouraged.

contempt of copA good demonstration of this law concept comes in the form of a YouTube video posted in July of 2013. A young man rolls through a DUI checkpoint on the 4th of July, where he encounters several ornery sheriffs. One sheriff wants him to roll his window down further—which, judging by the video, is not necessary—and when the young man refuses, he is ordered over to what is presumably a section where officers order detainees for further screening (which the officer arguably did not have suspicion to do so).

As the video progresses, the officers’ frustration over the young man’s entirely lawful reactions and responses to aggressive police behavior and questionable investigatory techniques ultimately lead them to bringing in a K-9 Unit, which produces a “false trigger,” which gives them cause to search his car. With the camera still rolling, the original sheriff, while conducting what is very arguably an unlawful search (particularly in context of what he will say next), is recorded saying, “He is perfectly innocent. He knows his rights. He knows what the Constitution says.” Then continues to search anyway. Once the officers notice they are being filmed, they turn the camera over. The search expectedly does not turn up anything illegal, and the ordeal ends.

While many of these contempt of cop videos demonstrate that citizens have a slightly misinformed or inaccurate understanding of the particulars of the law, the same lack of knowledge of the law is demonstrated by the officers. Both parties in these videos occasionally just seem to rattle off buzzwords in an attempt to intimidate the other party. Ultimately, however, they inspire an important thought: the more citizens challenge officers, the more citizens and officers should be compelled to educate themselves.

But how far can contempt of cop go? While in law school, I remember hearing of a young San Francisco man who was arrested after a police officer didn’t believe the name he was giving him, so he asked the cop “What if I tell you [my name is] f*** you?” During closing arguments, his lawyer astutely pointed out that “It is not a crime to have a smart mouth.” The young man was ultimately acquitted. While being rude to a cop is never recommended, this case illustrates an important concept—your rights are your rights, and no one, especially not the government, can take them away from you simply because you have insulted them.

It goes without saying that the safety of police officers and their ability to conduct their job without opposition are incredibly important. However, that does not mean that police officers are bestowed an unlimited amount of power and authority. When they are abusing their position in order to cut corners—or violate constitutional rights—citizens absolutely should not be afraid to be in contempt of cop and speak up.

However, I’d like to see this phrase go away, because in essence, this whole concept of contempt of cop is simply citizens exercising their constitutional rights. And unfortunately, as demonstrated by the case of the young San Francisco man, occasionally exercising those rights come with a price. It is not uncommon for those questioning an officer’s authority to be tagged with a citation or perhaps an arrest. While there is some solace that calmer, more legal heads will prevail, and these charges will likely go away, it is a cold comfort.

The simple fact of the matter, however, is that the First Amendment and the Fourth Amendment protect some very important rights, and an increased awareness of what those rights are is ultimately better for everyone—citizens and law enforcement alike.

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Film the Police! – Is It Legal to Film and Photograph Law Enforcement?

When I moved to the San Francisco Bay Area four years ago, I was impressed by all the young people eager to champion social justice causes. Perhaps even more impressive was the number of law enforcement professionals who invariably appeared at demonstrations and protests.

I remember attending a demonstration for the sentencing of Johannes Mehserle, the BART officer who killed Oscar Grant. While walking with the demonstrators, I made good use of my camera. I photographed anyone in plain sight, including police officers. During the course of the event, someone asked me if it was legal to include the police in the pictures. As a law student and avid First Amendment advocate, my initial responses was “duh,” but nonetheless, I felt compelled to explain why.

Can I Film the Police?

film and photograph the policeAs a general matter, the answer is yes. However, it is not the resounding, absolute yes I’d prefer to give. Photography, or videography, is obviously not explicitly protected by the First Amendment. However, your ability to film the police has become a largely protected activity as “expressive conduct.” This means: so long as your film or photographs can communicate a message to a potential audience, your camera and its contents are protected.

Before you get carried away, there are a few things worth noting:

  1. Your ability to photograph as a form of expressive conduct only applies to places traditionally open to the public. If you burst into a home or a crime scene, wielding a camera and saying the First Amendment protects you, you are wrong (and probably a little crazy).
  2. Expressive conduct is subject to reasonable time, place, and manner restrictions. What this means is rather complex, but on a basic level, it means that police officers to ask you to back away or else they may corral you into a “First Amendment Zone.”
  3. Photographing or filming the police does not give you free range to violate the law. You must obey the traffic laws, property laws, and lawful commands of police officers.

Note that, at a protest, commands by the police to disperse likely do not require photographers or the press to cease engaging in newsgathering activities. Not only are they engaging in constitutionally protected behavior, they are likely not the actors engaging in the behavior the police have ordered to cease and disperse.

There is ample federal precedent to support the legality of photographing and filming police. While some federal circuits have punted on the issue, others have explicitly said filming a public officer in the course of their public duty is an essential right and important to preserving a free, educated democracy.

Can the Police Ask Me to Stop Filming or Hand over My Camera?

Yes. Police can ostensibly ask you whatever they feel like asking you. Whether or not you have to listen or respond, however, is another matter.

If you are lawfully in a public place, and not interfering with the officer’s work, and a police officer asks you to stop filming, you are under no obligation to do so. The officer may have a valid reason to ask you to step away, or to move back, and you will need to use your own judgment (and perhaps videotape the scene, including your feet and the officer’s distance from you, to give validation and perspective to your conduct) as to whether or not that is a lawful request and how you should respond. However, under no circumstances are you required to listen to an officer who is unlawfully commanding you to stop making photographs or videos. Assuming the police officer is professional, they will realize that filming and photographing is not a crime, and return their focus on the real issues they are addressing.

Unfortunately, some police are not professional. Some may even confiscate your camera. Keep in mind, if this occurs, you should never resist an officer. If you strike a bad chord with one, and that officer gets physical, comply. Hopefully, police officers know better than to seize a video or film camera. If they do not, and they do seize that camera, let them know that they cannot search your camera without a warrant. If they proceed to anyway, additionally remind them that absent any good-faith belief that your camera contains specific evidence of a crime, they are violating the Constitution and potentially exposing themselves to civil liability.

As a general rule, listening and being polite with the police goes a long way. But this does not mean you shouldn’t stand up for your rights. After all, it is a police officer’s job to protect and serve.

Any Questions?

If you do, consider talking to a local attorney on the wiretapping laws and treatment of the First Amendment and photography or videography in your state. This will help you to become educated and may also prompt a lawyer to take action against unscrupulous or unclear laws, if it is necessary.

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Supreme Court to Decide Whether DNA Collection Requires a Warrant

In 2009, Alonzo King was arrested and charged with second degree felony assault in Maryland. As part of the arrest, the police took a sample of his DNA through a cheek swab. The DNA sample was compared to a federal database of DNA samples from unsolved crimes. There was a match. The DNA sample linked King to a 2003 robbery and rape of a woman. Based on the DNA link, King was sentenced to life in prison for rape. The original assault charge was reduced to a misdemeanor.

A state Court of Appeals overturned King’s sentence, finding that King’s 4th Amendment right against unreasonable searches had been violated by the DNA sample taken. Furthermore, according to Maryland law, police can only take DNA samples for felonies, not misdemeanors. The US Supreme Court is now hearing the case in 2013.

It is important to clarify the central issue of this case: whether the police can take DNA samples from persons arrested for a felony. Convicted felons are rightfully subjected to such cheek swabs, but persons who are arrested are still considered innocent until proven guilty. Those who are arrested, but not yet tried, enjoy the same rights as other citizens.

dna Q-tip swabThese rights include the right against unreasonable search and seizures. Most people know that the police cannot search their house without a warrant, but the 4th includes not only homes, but also our actual “persons.” A person’s DNA is their genetic make-up and is what gives that person their physical characteristics. DNA is intrinsically tied to a person’s personal body.  Given that the intent of the 4th Amendment is to protect against excess state intrusion into a citizen’s private life, allowing the police to take a DNA sample of an arrestee without a warrant would undermine a fundamental constitutional right.

The state of Maryland and the Obama administration would counter that this expansion of government power is reasonable under the 4th Amendment. Persons who are arrested are already required to turn out their pockets and give their fingerprints to the police. In addition, DNA samples help shut previously unsolved crimes. Victims will gain closure when DNA puts a criminal in prison. Innocent persons wrongfully accused will be exonerated. DNA samples are a powerful tool for the criminal justice system.

First, taking cheek swabs is significantly different from taking fingerprints or demanding that a person turn out their pockets. Fingerprints are commonly used to identify people and can sometimes link present criminals to past crimes, so prosecutors can be forgiven for believing that an external imprint on one’s skin is somehow the same as the fluids inside one’s body.

DNA, however, can reveal information which a fingerprint does not, information such as genetic diseases or disorders a person might have or will eventually have, certain biochemical personality traits such as their level of thrill-seeking, and even their life expectancy. Essentially, DNA is a massive compilation of personal background information, which in contrast to turning out one’s pockets, is not relevant to a case.

More importantly, cheek swabs and the extraction process are more invasive than taking a fingerprint. Cheek swabs involve sticking a Q-tip inside a person’s mouth. It is not harmful and prosecutors would insist that the process is not actually intrusive. Persons who are arrested and then forced by the police to have an instrument stuck up their mouth would disagree. If the state is required to acquire a warrant to search an area outside of a person’s body (i.e. their house), the state should be required to obtain a warrant to search inside a person’s body as well.

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Anything You Do NOT Say Can Be Used Against You

Picture this: A suspect is brought into a police station for questioning. The suspect is not under arrest, but the police spend a couple of hours asking the suspect questions. When the police ask if the bullets found at the murder scene came from one of the suspect’s firearms though, the suspect, who had previously answered all questions, becomes mute. Is this a confession of guilt, or an exercise of the right to remain silent?

The United States Supreme Court will be determining the answer this spring. In 1993, Genovevo Salinas was brought into a police station for questioning regarding the murders of Juan Manuel Garza and Hector Garza, two siblings living in Houston, Texas. Salinas was not under arrest and spoke freely until the police asked whether the ammunition cases found at victim’s apartments would be matched to Salinas’s shotgun. Salinas went silent.

After the questioning, police obtained a warrant for the shotgun and examination revealed that the ammunition cases likely came from Salinas’s shotgun. The police charged Salinas with murder in February 1993, but Salinas fled to Mexico before the police could locate him. Fourteen years later, in October 2007, Salinas was apprehended.

At Salinas’s second trial (first one was a mistrial), the Court allowed the prosecution to use the defendant’s silence as a confession. The judge held that the defendant’s answers and subsequent refusal to answer were all voluntary and thus the police had no duty to inform Salinas of his rights. The Court of Appeals affirmed the decision and the case has now moved to the Supreme Court.

Although “pleading the fifth,” or invoking the right to remain silent, may seem straight forward, the decades following the famous Miranda decision has proven that suspects have a much harder time using the right than the average person might suspect. The primary problem is that it is often ambiguous whether the suspect wants to use the right or not.

Scientific research on the matter has shown there are a number of ways that suspects can respond to an interrogation. Some suspects ask about their rights: “Do I have to answer these questions?” Other suspects make a request: “Can I go?” Still others add qualifiers, attempts to invoke the right in one part of questioning but not in others, to their statements: “I don’t want to talk about this today” or “I don’t want to talk about my driving.” And of course, some suspects simply engage in a (very long) staring contest with the police officer in front of them.

Although there are other attempts to invoke the right to remain silent, these four are the most popular. Each of these attempted uses of the right is problematic though. Asking about your right is not the same as invoking your right. A request to do something else could be viewed as just a short break between questions.  And although it does not seem possible, actual silence is considered too vague to be an invocation of the right to remain silent. Courts have held that a suspect who is mute could be forming an answer to a question rather than refusing to answer a question.

So where does this leave Salinas? Salinas’ first problem is that he was not under arrest when he was questioned. Miranda rights are usually applicable when the suspect is held by the police against the suspect’s will. The second challenge is that the circumstances make Salinas look guilty. Sitting in silence after hours of questioning gives the jury the impression that the defendant realizes he is caught. The prosecution built on this impression and called it a confession.

There are two holes in the prosecution’s argument. One, there are alternatives to the view that the defendant was confessing. Salinas could have stopped talking because he realized that the police were trying to trap him. Or Salinas could have been implicitly qualifying his right to the fifth, responding to all questions except those regarding his firearms.

The second, and more important flaw, is that reading silence as evidence of guilt destroys the purpose of the right to remain silent. Under the prosecution’s vision, if a suspect talks, the suspect may be building his own prison cell around himself. If the suspect does not talk, the suspect is still putting laying down the bricks of his incarceration. In other words criminal defendants could be incriminating themselves during police questioning regardless of their decision to speak.

Salinas may not be the most sympathetic man, but his case could determine the future of an important Constitutional right.

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