Recent verdicts may put civil rights in grave danger

Dan Devine

Three recent court cases — one local, two federal — have made one thing clear: the Fourth Amendment has become a high-stakes legal battleground.

In the last three weeks, the amendment, which protects citizens from “unreasonable searches and seizures,” has become the topic of heated debate both on state benches and in the halls of the U.S. Supreme Court.

Earlier this month, the Massachusetts Court of Appeals drew ire from police and prosecutors by overturning a conviction for illegal firearm possession. The court declared the “stop and frisk” search that netted the unregistered handgun was unconstitutional.

Last week, the U.S. Supreme Court upheld a conviction in a Michigan court for cocaine possession, challenging nearly a century of federal precedent by ruling that judges cannot exclude evidence collected by police officers who fail to properly announce their arrival when executing a search warrant.

And in Monday’s ruling on the case of Samson v. California, the Supreme Court agreed that California parolees have no “expectation of privacy that society would recognize as legitimate,” and can be searched by police at any time for no specific reason, so long as the search is not “arbitrary, capricious, or harassing.”

This rash of judicial action underscores what has long been an ideological tug of war between preserving civil liberties and protecting citizens from crime.

Law enforcement advocates have claimed rulings like the Massachusetts verdict will hinder officers attempting to protect and serve, while the Supreme Court decisions are seen as helping police do their jobs.

But civil rights activists and defense lawyers fear that such judicial activism could sound the death knell for Fourth Amendment protections, destroying the right to privacy and leaving innocent people with no recourse against police intrusion.

Despite the dangers predicted by Fourth Amendment supporters, many people may cast a harsher eye on the Massachusetts verdict than on the Supreme Court rulings, because while the former reaffirmed our civil rights, the latter two took criminals trading in guns and drugs off the streets.

When confronting the difficult task of answering criticisms from citizens dissatisfied with “victories” like the Massachusetts ruling, civil rights backers must turn to the tangible themselves, said Brownlow Speer, chief appellate attorney for the Committee for Public Counsel Services.

“[We must answer] by focusing them on all the searches that don’t turn [guns and drugs] up. By focusing them on all the searches that have been and will be conducted based on a hunch, or because a police officer doesn’t like the way that somebody looks, that will turn up nothing at all. When people see these rulings impacting them and the people they care about, they become seriously aggrieved.”

The ball began rolling in the Bay State June 2, when the state Court of Appeals overturned Michael DePeiza’s firearm conviction.

In the appellate court’s majority opinion, Justice Joseph A. Grasso Jr. stated that an “individual’s manner of walking, like his hairstyle or his clothing, is by itself too idiosyncratic to serve as the basis” for reasonable suspicion, and that even though the search turned up an illegal firearm, officers never should have stopped DePeiza in the first place.

Boston Police Superintendent Robert Dunford claimed the ruling reflected a glaring disconnect between the ideological points debated by jurists and the harsh realities faced by police. If police “only relied on shots fired before we stopped anybody,” Dunford told reporters, “that [would be] kind of ridiculous.”

Jake Wark, a spokesman for the Suffolk County district attorney’s office, said the state intends to appeal the decision, which he told reporters “could have a significant detrimental effect on our ability to prosecute gun crimes,” to the Massachusetts Supreme Judicial Court.

While the Boston Police Department declined to comment on the Massachusetts or Supreme Court rulings for this article, a statement issued through its Media Relations division said, “As every law enforcement officer is sworn to uphold the Constitution of the United States, so too must police officers abide by and enforce the laws created by the legislature and interpreted by the courts.”

Calls to the Suffolk County district attorney’s office for comment were not returned.

The search and seizure debate went national after last week’s 5-4 Supreme Court’s vote denying an appeal by Booker Hudson of his conviction for cocaine possession.

In 1998, Detroit police officers executed a search warrant for drugs and firearms inside Hudson’s home. According to testimony, they shouted “Police, search warrant,” but did not knock, and waited only three to five seconds before entering through an unlocked door. In previous cases, justices have ruled that police must knock, announce their presence and wait 15 to 20 seconds before entering a home.

Once inside, officers found Hudson sitting on his couch, a loaded gun beside him and cocaine rocks in his pocket. This evidence led to his arrest and subsequent conviction.

The appeal argued that the police’s premature entry constituted an unreasonable search, rendering the seized evidence “tainted,” and said that unless courts suppress such tainted evidence, there will be nothing to deter police from barging into homes.

Justice Antonin Scalia disagreed in the court’s majority opinion, joined by Chief Justice John G. Roberts and Justices Clarence Thomas, Samuel A. Alito Jr. and Anthony M. Kennedy.

Scalia argued that increased professionalism and enhanced internal discipline within police departments, together with a citizen’s right to sue police for civil rights violations, provide strong enough deterrents to prevent officers from using this ruling as a green light for baseless raids.

In the minority’s dissenting opinion, joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg, Justice Stephen Breyer disputed Scalia’s assessment, calling reports of “knock-and-announce” violations “sufficiently frequent and serious as to indicate a ‘widespread pattern’” of unlawful police behavior.

Breyer also challenged the effectiveness of civil rights suits, noting the majority’s failure to cite “a single reported case in which a plaintiff has collected more than nominal damages” resulting from a “knock-and-announce” violation.

Scalia was unmoved.

“Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house,” Scalia wrote.

According to Breyer, however, that “preliminary misstep” was the crux of the case, and should not have been so quickly dismissed by the court’s five-member conservative majority.

“Of course, had the police entered the house lawfully, they would have found the gun and drugs. But that fact is beside the point,” Breyer wrote. “The question is not what police might have done had they not behaved unlawfully. The question is what they did do.

“Was there … an independent chain of events that would have inevitably led to the discovery and seizure of the evidence despite [the unlawful entry]? The answer here is ‘no.’”

Breyer called the ruling “doubly troubling,” saying it “represents a significant departure from the Court’s precedents … [and] it weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.”

The dissent continued earlier this week when the Supreme Court ruled by a 6-3 vote that a California statute requiring every prisoner eligible for parole to consent in writing to “search or seizure by a parole officer or other peace officer … with or without a search warrant and with or without cause” is legitimate and does not violate parolees’ constitutional rights.

A San Bruno, Calif. police officer arrested Donald Samson in September 2002. The officer, who knew Samson was on parole following a firearm conviction, spotted him walking and suspected there was a warrant out for his arrest on a parole violation.

The officer searched Samson, who said the warrant had been “taken care of.” After confirming that Samson was telling the truth, the officer searched him again, this time finding a plastic bag containing methamphetamine inside a pack of cigarettes Samson was carrying.

Samson was arrested, and rather than being charged with a parole violation, he was charged with drug possession. He was convicted and sentenced to seven years in state prison. Both the trial court and the California Court of Appeal denied Samson’s motions to suppress the methamphetamines.

Writing for the majority, Justice Thomas upheld the statute, citing Supreme Court precedent that individual states have an “‘overwhelming interest’ in supervising parolees because they ‘are more likely to commit future criminal offenses.’” In California, where the recidivism rate among parolees reaches 68 to 70 percent, the state’s “interests in reducing recidivism … warrant privacy intrusions that would not otherwise be tolerated under the Fourth Amendment.”

In his dissenting opinion, Justice Stevens remained unconvinced, saying that the ruling removed the constitutional shield the Framers provided “to guard against the evils of arbitrary action, caprice, and harassment.”

“What the Court sanctions [in this ruling] is an unprecedented curtailment of liberty,” Stevens wrote. Though he acknowledged that the protection granted to parolees under the Fourth Amendment is “not as robust as that afforded to ordinary citizens,” Stevens said that no case on record “supports a regime of suspicionless searches” like those allowed in California.

“The suspicionless search,” he added, “is the very evil the Fourth Amendment was intended to stamp out.”

While thirty other states and the federal government require parolees to submit to searches on reasonable grounds, California is the only state that allows parolees to be searched for no specific reason.

Responses to these verdicts have varied just as intensely outside the courtroom as they did inside.

The Criminal Justice Legal Foundation (CJLF), which filed briefs in both the Hudson and Samson U.S. Supreme Court cases, has long supported the expansion of governmental powers to “respect the rights of crime victims and law-abiding society.” Spokesmen for the CJLF declared the rulings major victories for police officers and prosecutors.

“People who are caught red-handed with evidence of guilt have one less weapon to get off,” CJLF legal director Kent Scheidegger said in a statement. “Justice is best served when juries are allowed to consider all relevant evidence.”

CJLF president Michael Rushford expressed similar satisfaction at the Samson verdict’s preservation of “state authority to closely monitor criminals released back into society.”

Organizations like the American Civil Liberties Union (ACLU) and The Cato Institute, a nonprofit public policy research foundation, have come out in opposition to the Supreme Court’s rulings, saying that they empower law enforcement only by trampling upon the rights of citizens.

In its brief filed in the Samson case, the ACLU argued that upholding California’s suspicionless search statute “gives a blank check to police officers to conduct searches at their will.”

“The bottom line is that government cannot cut constitutional corners even in pursuit of a goal it identifies as being for the public good,” said Graham Boyd, director of the ACLU’s Drug Policy Reform Project, who co-authored the brief.

Radley Balko, a Cato Institute policy analyst, characterized the Hudson ruling as a severe blow to the right to privacy.

“Because the courts have set the bar extremely high in allowing victims of botched [no-knock] raids to sue police officers and their superiors, the only real defense left against wholesale disregard for the rule requiring police to ‘knock and announce’ before entering private residences was to exclude evidence seized in illegal raids,” Balko said. “The Supreme Court [just] removed that defense.”

“Because of [this] decision, we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids,” Balko added. “And we can expect to see more innocent civilians wrongly targeted.”

(The Associated Press contributed to this report.)