Articles Posted in Constitutional Law

Mr. Glover, a Kansan pickup truck owner, was driving when he passed a sheriff’s deputy. The deputy, who was randomly checking license plates, searched the plate of his truck. Upon his search, the deputy found that the state revoked the license from the registered owner of the truck. The sheriff, assuming Glover was driving, pulled the truck over, verified that the driver was Glover, and charged him with driving on a suspended license.  Glover did not accept the idea that he was lawfully stopped and detained.  Instead, he believed that the police had no right to stop.  The officer hadn’t witnessed him commit any violation of law.  The deputy only had a  “hunch” he was driving the truck.  After all, he hadn’t done anything that would satisfy the usual standard for probable cause to detain.  That is, something the officer saw that led him to believe that the driver had committed a crime.   Glover’s lawyers argued the misdemeanor case all the way to the US Supreme Court. On April 6, 2020, the United States Supreme Court ruled in favor of the State of Kansas and made law that the rest of the country is going to have to live with as well.  It is now legal for police to assume the driver of a car is also the registered owner.

Before the Glover decision, police needed reasonable evidence to confirm the identity of a driver they knew was driving without a valid license before making a traffic stop. If the identity of the driver wasn’t known to the police there had to be an articulable objective suspicion of criminality before a detention could occur.  No longer, it is now much easier for police to stop your car on the road and issue a traffic ticket.

Our founding fathers created the Fourth Amendment to the Constitution, the protection against unreasonable searches and seizures, to protect us from abuses of power by the government. For this reason, it is essential to continue to fight the idea that police can use this case to justify all traffic stops. This case must be limited to it’s facts.  Unfortunately, based on past experience I believe that law enforcement will use this case to justify many stops based on hunches and speculation.  If there isn’t  reasonable evidence to believe you have violated the law, a vehicle code violation or other grounds to pull you over and detain you, don’t give up on the idea that your right to be free from unreasonable searches and seizures no longer exists.

Imagine you are driving along and you get pulled over for a registration violation. The police officer asks for your cell phone along with your drivers license and insurance card. You say what? You have a right to have my cell phone?? The officer says, “oh yes I do. You are not under arrest, you are being given a citation for registration violation. Now hand over your cell phone because I want to search it.” This is essentially the case now pending before the United States Supreme Court. If you have a cell phone then you are going to want to follow this case.

David Riley, a man out of San Diego, was stopped by police for having expired registration tags. The police had suspected him of being a gang member who was involved in a shooting, but they had no evidence to tie him to the shooting. When they saw David Riley driving a car that had expired registration, the police pulled him over. They discovered he had two cell phones and decided to search them. They looked through the cell phones and found that there were photographs on the cell phone. After opening the photos the police found photographs that linked Riley to the gang shooting. At trial, his lawyer argued that the search of the cell phones was illegal and that the prosecution should not be able to use the evidence found on illegal search at trial against Riley. That argument didn’t work and he was convicted. Now the Supreme Court will take up the issue. Can the police search your cell phone anytime you’re given a citation or arrested, without a warrant?

Under the Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on “probable cause,” evidence that a crime has been committed. However, The high court ruled 40 years ago that police don’t need a search warrant to look through anything a person is carrying when arrested. But lower federal and state courts have differed over whether that decision, predating the digital age, should apply to increasingly sophisticated cellphones, including even more advanced smartphones.

Is the government growing a conscience? Our previous blog post discussed the NSA’s very nasty habit of watching everything we do without warrants or permission, and then turning over their information to law enforcement agencies. Well when we asked “who watches the watchers”, it seems like we may have found an answer. The New York Times has reported that the Solicitor General for the United States, Donald Verrilli Jr. has voiced strong opposition to such tactics.

Typically there is no way to know if evidence gathered against you comes from the NSA’s warrantless surveillance program. You can’t fight what you don’t know, so even if the government has illegally gathered evidence against you you’re out of luck. But the Justice Department is set to inform certain defendants that the evidence gathered against them may have come from warrantless surveillance. Apparently Mr. Verrilli is extremely troubled by the actions of the NSA and the Justice Department and doesn’t believe it’s legal or right. Imagine that! Hopefully this is just a small step towards shoring up our Constitution and the rights it affords us.

How does the NSA surveillance scandal affect you personally? Most people take the attitude that the NSA snooping into everyone’s lives is harmless if you have nothing to hide. The problem is sometimes we don’t know we’re hiding something! There are thousands upon thousands of laws, and it’s impossible for even the most experienced lawyer to know all of them. Everyone at some point in time has made a harmless mistake and broken a law. Merge into another lane without using your blinker? Well it’s not too farfetched to think that in a surveillance state even these small actions might eventually result in harsh punishment and prosecution. But the NSA can’t arrest you! Plus they’re only interested in terrorists! What a waste of time it is to get worked up over this!

Well, while the NSA can’t arrest you themselves, it is becoming apparent that whatever they learn about your life gets passed along to law enforcement. You might be wondering how this is constitutional! They can’t just snoop on you and violate your constitutional rights and then arrest you can they? Well, it turns out that law enforcement agencies use something called “parallel construction” to make it legal.

Parallel construction occurs when the NSA gives a law enforcement agency a “tip”, and this law enforcement agency uses this tip to invade every aspect of your life until they can construct a legal way to introduce that evidence in a case against you. Right now the Drug Enforcement Agency is the biggest culprit. But even the IRS is in on this action! This is the scariest part! Where does it stop? Will the NSA give tips to local and state law enforcement? It’s a brave new world when your government can spy on you at will illegally, and then help law enforcement agencies arrest and convict you legally. So whenever someone says they have nothing to hide, ask them “Who watches the watchers?”