Strip Searches for Students, the Short Version

Sometimes a journalist manages to put everything you need to know about a subject in the first sentence of his report. From Adam Liptak’s article “Court Debates Strip Search of Student”:

The United States Supreme Court spent an hour on Tuesday debating what middle school students are apt to put in their underwear and what should be done about it.

When the answers are so obvious – (a) anything they want to and (b) nothing should be done about it – it’s pretty sad that our justice system struggles to come to a conclusion. It really shouldn’t matter that this was a 13 year old honors student, and that the suspected contraband was prescription strength advil, and that the “information” came from an unreliable tattle-tale trying to shift blame away from herself, or that the strip search found nothing, although those facts do add to the insanity of the situation.

Liptak’s first sentence synopsis is entirely accurate. And the fact that anything about this topic is “debatable” is ludicrous. This is apparently how low we have sunk: what middle school students put in their underwear, and under what scenarios can the school and its administrators go a-peeping.

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We Interrupt Your Regularly Scheduled Programming

All the listservs are abuzz (Austin, Texas and national criminal defense lawyer association listservs, that is). The Supreme Court has just handed down Arizona v. Gant, which from the non-binding syllabus portion reads:

Held: Police may search the passenger compartment of a vehicle incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.

One important, and unfortunately distinguishing fact from most vehicle searches in this case was that the defendant managed to park his car in his driveway before being arrested by the police. Therefore the typical scenario where the "traffic stop leads to an arrest, the arrest leads to the impound, and the impound justifies the inventory search" analysis did not apply. 

This case simply addresses the search incident to arrest issue, and whether or not the police may automatically search a vehicle if they see an offense committed in it. And for no other reason. From the opinion:

Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle.

When asked at the suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.”

Criminal defense lawyers nationwide can actually hear that smug tone of voice: because I can / smirk. Indeed the opinion quoted Justice O’Connor’s prior observation that “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception”.

No surprise there. When courts repeatedly allow and excuse all sorts of police behavior, they are likely to feel entitled to repeat it. That’s just human nature. I wonder though, since the majority actually bothered to quote the officer’s sarcastic response whether they too may have heard his insolent tone of voice as well.

Most encouraging perhaps was the court’s rejection of the typical State argument: that the police interest in investigation – on a whim – is more important than the citizen’s privacy interests:

For several reasons, we reject the State’s argument. First, 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.

No matter how this decision gets limited in the future, those last two paragraphs are very heartening. I’ll take a renewed interest in the original understanding of the purpose of the Fourth Amendment any day of the week.

The Professor vs. the Practitioner on the Fourth Amendment

George Washington University Law School professor Orin Kerr, who is probably most renowned for his contributions to the Volokh Conspiracy, is publishing a paper in the upcoming Stanford Law Review titled “Applying the Fourth Amendment to the Internet: A General Approach”. The article’s general conceit appears to be that the Fourth Amendment should apply to the internet in the same way that it applies to the “physical world”:

Thus, the goal is "technology neutrality": Ideally, The Fourth Amendment should play the same role regardless of whether a criminal investigation occurs via an investigation in the physical world or whether it occurs via an investigation over the Internet.

Over at Simple Justice, Scott Greenfield asks whether this is the right approach, and concludes that it is not:

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Nominee For Best Criminal Defense Blog Post of the Year

 From Scott Henson: Is Babysitting While White Reasonable Suspicion For Police Questioning? 

Scott’s not a lawyer, but I doubt there will be many other posts written in the next two months that can overcome his slice-of-life post that is the clear frontrunner in my mind.


Another Scott, this time Greenfield, riffs on the fascinating comments section of Henson’s original post. As O’Keefe frequently reminds us, the best blogging turns into conversation, and Henson has hit it out of the park with his thought provoking piece.

More on Forced Blood Draws


Browsing through the RSS reader, and I came upon an apropos section of a recent DrugWarRant post that applies neatly to the libertarian objections voiced by Austin’s citizens in the stories above.

Pete is actually talking about that age old Never Consent To A Search bit of advice that seems mostly to apply in drug cases, but struck a chord with me because of my recent ramblings about the newly proposed Austin Police policy regarding .

In the ‘Austin Reacts’ post I mentioned the overwhelmingly negative public response to Acevedo’s new proposal, but of course there were also the inevitable “If you’ve got nothing to hide, why would you care about this” comments left on the KXAN story as well.

And this subject comes up in a variety of ways but with regularity when discussing criminal defense issues with the public at large. Thanks to Pete, I now have a new and improved way of explaining why that logic is so flawed:

Now the real question is, why would anyone ever consent to a search?

Sure, the canned law enforcement quip is "If you have nothing to hide, you have nothing to worry about." But regular readers know my response to that:

Sometimes people say I shouldn't mind being searched if I have nothing to hide. I immediately accuse them of having a swastika tattooed on their genitalia -- if they have nothing to hide, then surely they shouldn't mind dropping their pants to prove me wrong.

And, of course, even without that thinking the "nothing to hide" bit doesn't make a bit of sense in consenting to a search.

Fantastic response. I can’t wait to use it the next time someone tells me I shouldn’t worry so much about the Fourth Amendment, or that the Bill of Rights is all a bunch of baloney meant to coddle criminals and doesn’t do anything for the rest of us…

Good Law?

Doug Weathers asks criminal defense lawyers, “Would you rather have Good Facts or Good Law?”:

Every time I am preparing for a trial I deal with the question of do I have good facts or good law. Rarely do you have both because those cases are usually dismissed or never go to trial. Sometimes you have neither good facts or good law and those cases usually plead. In most of the trial cases you will have either good facts or good law.

In my experience as a criminal defense attorney in Texas, there is precious little good law for the defendant.

On Law & Order and other TV shows judges are routinely throwing out cases for undotted i’s and uncrossed t’s, but it ain’t exactly so in real courtrooms. The overwhelming government interest (according to appellate courts) in convicting anyone and everyone when it comes to the War on Drugs has darn near killed the Fourth Amendment.

And then there’s that DWI exception to the Constitution:

In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that [stopping drivers without reasonable suspicion or probable cause**] is consistent with the Fourth Amendment.

[**original wording is “it”. Read the case. My substitution for the word “it” is 100% accurate.]

Good law? Only been practicing a little over ten years. I’ve heard rumors that such a thing existed in the 70’s. And I’ve read plenty of caselaw overturning those well reasoned precedents. 

I’ll go with Good Facts. Medium Facts. Any Facts.

OK. Enough dreaming. Gotta get back to work on some of those “Not So Good Facts/Not So Good Law” cases…

High School Root Beer Party Raided

OK. So it makes for an amusing story about the cops bursting into a party full of teenagers drinking root beer, but, where was the reasonable suspicion or probable cause for the search and at least temporary seizures of every single person in the house?

Cars lining the street. A house full of young people. A keg and drinking games inside. Police thought they had an underage boozing party on their hands.

But though they made dozens of teens take breath tests, none tested positive for alcohol. That's because the keg contained root beer.

90 breath tests. No alcohol.

Austin & High Crime Neighborhoods

Via Jeff Beckham, the Austin American-Statesman has a feature where subscribers can search property crimes in any area of Austin, by zip code, or even by street. (It’s free, but yes, you may have to ‘sign up’ to use the link.)

The map was created to support reporter Tony Plohetski’s story on property crimes, which looked at more than 40,000 police reports and showed that “property crimes are rarely solved, and the success of solving a case largely depends on where the crime is reported.”

This is a great addition to the site and exactly the type of feature that local newspapers should employ. The only drawback is that these are 2006 numbers, and thus about eight months old.

I think there are potentially other drawbacks, besides the age of the data. In fact, while I can’t prove it, I doubt there are statistically significant differences between actual current and year old data.

Other drawbacks? Well, according to the ‘APD disclaimer’ on the site:

  • Due to methodological differences in data collection, different data sources may produce different statistics.
  • Our data is continuously being updated. The data provided represents a particular point in time and does not take into account the dynamic nature of our databases.
  • The data here may not reflect official Texas DPS, FBI, UCR or NIBRS numbers.
  • The Austin Police Department can not assume any liability for any decision made or action taken or not taken by the recipient in reliance upon any information or data provided.

OK. Sounds like a standard “written by a civil lawyer” disclaimer.

But they could have just replaced it with the most famous quote from Mark Twain’s “Chapters from My Autobiography”:

Figures often beguile me, particularly when I have the arranging of them myself; in which case the remark attributed to Disraeli would often apply with justice and force: 'There are three kinds of lies: lies, damned lies, and statistics.'

On a criminal defense practice note, I wonder whether the numbers in this database might be crunched to possibly contest a police officer’s contention that one of the reasons he stopped the defendant was “because he was in a high crime area”. It’s almost a joke among defense lawyers that some cops are willing to testify that any area of Austin is “high crime”. Next time I see that in a police report justifying reasonable suspicion to detain, I think I’ll use APD’s own stats to see whether or not it’s true…

The Ethics and Social Consequences of Search and Seizure Policy

Former NPR contributor Randy Cohen’s “Ethicist” column in this Sunday’s New York Times Magazine is titled “Work Search”. In it, he answers a reader’s question about the legality and ethics of workplace searches.

While noting that employers may have a legal right to search handbags etc., Cohen offers reasons why it still may not be the best policy:

To search someone is to treat him as if he were untrustworthy, if not dishonest.

That the hospital searches everyone mitigates this baleful effect slightly, because no employee is being singled out for special scrutiny.

But to mildly humiliate many does not eradicate the sting to each.

I wish more people could understand this effect when the issue of racial profiling comes up in the context of criminal arrests.

Some still proffer the illogical “If you’re not doing anything wrong, then it shouldn’t matter” argument while debating this issue.

Putting aside the “Never mind the Fourth Amendment” problem with that attitude for now, let’s acknowledge that it creates a bigger problem than it attempts to solve.

Subjecting one group of people to even “mild” but persistent humiliation breeds a natural disrespect, then fear, then hatred of law enforcement.

It’s pretty simple really. When a Government treats its citizens with respect, it will likewise receive respect in return.

Consent Searches Increase In Austin

I’ve written before about why you might want to consider perfectly legitimate reasons to say “No” when the police ask to search you or your vehicle, but apparently folks aren’t listening. 

According to today’s Austin American Statesman, “Police Consent Searches Increase”.

Fourth Amendment, U.S. Constitution

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.

Texas Constitution Article I, Section 9

The people shall be secure in their persons, houses, papers and possessions, from all unreasonable seizures, and no warrant to search any place, or to seize any person or thing, shall issue without describing them as near as may be, nor without probable cause, supported by oath or affirmation.

Accept a Good Deal or Roll the Dice?

John Katz posts at Underdog Blog about a possibly illegal search that led to his client’s arrest for possession of marijuana. Describing an informal discussion (off the record) with the police officer and the prosecutor:

He said he patted down my client down for his own safety, which he said he routinely does. Yow! The Supreme Court limits patdowns to situations where a police officer has reasonable, articulable suspicion to believe that the patdown will find contraband, ordinarily a weapon. This police officer was running afoul of this Terry decision.

After the discussion, the prosecutor offered a good resolution which the client accepted. (From the sounds of it, the Austin equivalent to the offer was a deferred disposition/dismissal for a Class C offense).

But wait, some might say, if the defense lawyer had an opportunity to win the case outright for his client, why not press forward with the pretrial motion to suppress? That way, the client would get no punishment, no community service, no small fine, no nothing. Well, as Katz goes on to say:

I could have advised my client to go to trial, but I expected that the officer would have thrown in some specifics for having reasonable and articulable suspicion that my client was armed (which he was not), which included his alleged significant nervousness, and the nighttime roadside location. Suppressing this patdown -- which was followed by my client's allegedly fessing up that the hard object in his pocket was a pot pipe -- was no shoe-in.

Unlike TV and movies, where judges seem to endlessly toss murder cases before trial because of undotted T’s, in reality, suppression hearings are difficult to win. I think Katz did well to advise his client to accept the 100% certain “stay out of trouble and get your dismissal” deal here. 

And even if the hearing turned out the way the lawyer expects it to, with no extra facts popping up to bolster the state’s case, do you really want to spend the extra money appealing the case if the judge sees the law differently than you do? Often when a Travis County prosecutor agrees to dismiss your case if you’ll do something minor in return, my advice is: take the 100% guaranteed good result, rather than roll the dice and risk blemishing your criminal history.

Why You Should Never Consent To Any Police Search...

From Grits for Breakfast:

'Consent' lets Texas police move car, remove gas tank (From

Generalized consent to search a car in Texas apparently includes having to endure the officer choosing to move it to a different location to remove the gas tank. Montanez v. State, 2006 Tex. App. LEXIS 9751 (Tex. App.–Waco November 8, 2006), on remand from Montanez v. State, 195 S.W.3d 101, 109 (Tex. Crim. App. 2006) (decision on other grounds: standard of review).

Consent implies permission to remove the gas tank! Really? At a traffic stop? With no reasonable suspicion? What do the lawyers out there have to say about this?

The idea of being stopped for a traffic violation then finding yourself sitting around while police literally pull your car apart bolt by bolt - even though no one has reason to suspect you of a crime - sounds like the plot from a bad comedy movie come true. Where does such sweeping consent end?

Please read Scott’s post, which also details previous coverage he has given to the issue of requiring officers to get written consent to search. Making sense (if you can call it that) of opinions like these always starts with a good read, so here’s what I gleaned from the facts section:

About eleven minutes after stopping the defendant because his license plate was obscured and the license plate light was not working, a Narcotics Task Force officer “felt like some type of illegal activity was occurring” and asked for consent to search the car.  More from the opinion’s recitation of the facts:

He “then started a basic search of the vehicle.” He first looked at the undercarriage of the car and noticed a fresh coat of paint, which he testified is “unheard of on older model vehicles.”… When he lifted the carpeting in the rear of the van, he noticed “a lot of screws missing that shouldn't have been missing” and “brand-new bolts” in two areas… (He) told the canine handler that he knew there were drugs in the car but could not find any.  

Wow. First we have the court affirming that a “basic search” can include looking under the car, and lifting the carpet??? Does that make you want to say “go ahead and search my car?” You don’t have to be hiding dope to find that objectionable.

What about the case details regarding the “voluntariness” of taking the defendant’s car to the task force headquarters? Here’s the money quote from the opinion… The defendant was told he would have to follow the officer…

...back to Nacogdoches so he could inspect the gas tank. (The officer) stated, “You have to follow me. If you go any other direction, you will be under arrest. You are under arrest right now. You comprende?” Montanez replied that he understood. According to (the officer), Montanez did not indicate in any way at this point that he wanted to withdraw his consent to search. The entire roadside encounter lasted about one and one-half hours.

Didn’t indicate that he was withdrawing consent? He was just told that if he failed to comply with the orders of the armed man in uniform that he would be arrested. Then he was told that he was actually under arrest. If he had objected at that point, he was subjecting himself to prosecution for evading, resisting and/or failure to obey a lawful order.

I wrote a while back about the Schneckloth v. Bustamonte requirement that consent be voluntary and a Kentucky appellate court bold enough to suggest that upholding a patently ridiculous search was untenable in part because it would “discourage future citizen cooperation” when it was really needed.

Is there any wonder that criminal defense lawyers advise folks to not submit to any search? No matter what the circumstances are? OK, do you have 90 minutes to waste while a cop tears your car apart?