THE DRUG EXCEPTION TO THE FOURTH AMENDMENT
Justice is incidental to law and order.
- J. Edgar Hoover
Terry - The Start Down The Path
In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court for the first time approved an intrusion on individual liberty on a standard lower than the Constitutional "probably cause" standard.
[It may be worth noting that Justice Douglas dissented in Terry stating, "To give the police greater power than a magistrate is to take a long step down the totalitarian path." If he only knew.]
The standard was explained as, "[w]hen an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others", 392 U.S. at 24, and, "there must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime." 392 U.S. at 26.
The holding was stated as follows: "We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him." 392 U.S. at 30.
Several principles emerge here that seek to limit this rush down the totalitarian path: 1) the investigating officer must observe "unusual conduct" that leads him to believe (a) that criminal activity may be afoot, and (b) that the persons under suspicion may be "armed and presently dangerous," 2) he must identify himself as a police officer and make "reasonable inquiries," 3) only if these steps fail to dispel his reasonable fear may he search, and 4) the search is limited to (a) the outer clothing for (b) weapons which might be used to assault him.
The Drug Exception to Weapons Searches
In United States v. Jacob, 377 F.3d 573 (6th Cir. 2004), as part of an ongoing drug investigation, drug interdiction agents at gunpoint pulled over a Toyota Camry with three individuals in it. All three were searched (producing "a small amount of marijuana and $1,000" on one of them), handcuffed and put into the back of a patrol car. Although the defendants complained about being unconstitutionally searched and handcuffed, the Court held, "officers who stop a person who is ‘reasonably suspected of carrying drugs’ are ‘entitled to rely on their experience and training in concluding that weapons are frequently used in drug transactions’ and to take reasonable measures to protect themselves." Id. at 579. (citing U.S. v. Heath, 259 F.3d 522 (6th Cir. 2001). No guns were found.
Despite the fact that Terry requires, before a pat-down search can be conducted, that the officer observe unusual conduct and has a reasonable belief that the person with whom he is dealing is presently armed and dangerous, the Sixth Circuit has now relieved prosecuting authorities of the necessity of proving the facts that might support the officer’s reasonable beliefs by creating a presumption of dangerousness for all drug cases. Rather than have to prove that the officer complied with the mandates of the Supreme Court in Terry, the prosecution now simply waves the "drug case" talisman and the Fourth Amendment and its protections evaporate.
Such was the case in United States v. Foster, 376 F.3d 577 (6th Cir. 2004), where police stopped a man and then said that he smelled of PCP. The officers handcuffed the defendant before searching him, but, after finding neither guns nor contraband, they continued to keep him handcuffed. The officer testified "previous dealings with people under the influence of PCP led him to feel that Foster posed a potential threat of violence, thereby warranting a pat-down for any concealed weapons." 376 F.3d at 586 n. 7. The Court of Appeals accepts this blanket statement finding that the officer "had reason to think that Foster could be dangerous, based on his experience in dealing with people under the influence of PCP." Id. at 587. So now the standard is not whether this defendant could be armed or dangerous, but whether he is in a group of people that may be dangerous. The Terry standard of individualized suspicion based on specific facts has disappeared in the face of the drug case talisman.
In United States v. Montgomery, 377 F.3d 582 (6th Cir. 2004), the defendants were pulled over by a Highway Patrol trooper at 8:00 at night for speeding. She observed a "one-inch long" stem on the driver’s floorboard. Deciding it was marijuana, the trooper advised the occupants that she was going to search the car for drugs. All were removed from the car, searched and put in the back of a patrol car. Although the troopers found marijuana seeds and a small scale with green leafy and white powder residues on it, no firearms were found. In upholding the search and justifying the troopers actions, the Court holds, "Based on the nervousness of all of the occupants, the marijuana stem in plain view, Simpson’s and Richardson’s attempts to conceal the marijuana stem and an unknown object, respectively, it was reasonable for the troopers to believe that defendant may have been armed and dangerous so as to justify patting him down for weapons after he exited the vehicle." 377 F.3d at 586. Aside from the fact that the case involves drugs (barely), the Court provides no explanation of how nervousness and a marijuana stem equate to being "armed and dangerous", but there doesn’t have to be if the standard is simply that it is a drug case.
A similar presumption has been created for dealing with search warrants issued in drug cases [are there any other kinds?]. Generally speaking, to be valid, a search warrant must issue upon probable cause supported by oath or affirmation, and may not rest upon mere affirmance of suspicion or belief without disclosure of supporting facts or circumstances. Nathanson v. United States, 290 U.S. 41, 46-47, 54 S.Ct. 11, 13 (1933). Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others. Illinois v. Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 2333, 76 L.Ed.2d 527 (1983). "The critical element in a reasonable search is not that the owner of the property is suspected of crime but that there is reasonable cause to believe that the specific ‘things’ to be searched for and seized are located on the property to which entry is sought." Zurcher v. Stanford Daily, 436 U.S. 547, 556, 98 S.Ct. 1970, 1976, 56 L.Ed.2d 525 (1978).
In United States v. Newton, 389 F.3d 631 (6th Cir. 2004), however, after arresting the defendant in a marijuana case, the drug agents discovered that he owned four different addresses. (Only one location had been used during the course of the investigation.) Application was made to a magistrate for warrants to search all four residences. "Included in the affidavit was information from a previously reliable informant stating a belief that Newton was engaged in drug dealing. However, the informant provided no facts in regard to drug dealing, but generally stated a series of beliefs." 389 F.3d at 634. In upholding the challenge to the sufficiency of the search warrants the Court of Appeals held, "‘[I]n the case of drug dealers, evidence is likely to be found where the dealers live.’" Id. at 635. Not only have we relieved police officers of having to prove that someone they wanted to search was "armed and dangerous" because it is a drug case, now we have relieved police officers of the constitutional requirement that they show probable cause (generally viewed as a fairly low burden) to believe that there are illegal items one the premises the officer wishes to search. Instead, if it is a drug case, we will grant the officer a presumption that contraband is present and not require any proof from him or her.
Judge Moore concurred in this part of the Newton decision because she felt bound by precedent, but she noted that "this comes dangerously close to creating a special rule for drug-related search warrants ... and to eliding the distinction between probable cause to believe an individual guilty of a crime and probable cause to search property owned by that individual in contravention [of Supreme Court precedent]." 389 F.3d at 639-40.
Search Incident to Lawful Arrest That Hasn’t Occurred Yet
In United States v. Montgomery, the Court gets even more creative in stretching the Fourth Amendment to accommodate drug searches. After having done a Terry pat-down of the defendant, one of the troopers gets him out of the patrol car and searches him for drugs. Unable to stretch even Terry so far as to uphold this search, the Court announces that "the search-incident-to-a-lawful-arrest rule also permits an officer to conduct a full search of an arrestee’s person before he is placed under lawful custodial arrest". 377 F.3d at 586. That is, in this drug case the troopers were allowed to make a search-incident-to-arrest before the defendant was actually arrested so long as they made sure to arrest him later.
As Exception to Knowledge
Perhaps the most insidious use of the drug exception is in the creation of a presumption of knowledge that allows detention of anyone around drugs without regard to whether or not there was even a reasonable suspicion of that person’s involvement. Following the Supreme Court’s lead in Maryland v. Pringle, __ U.S. __, 124 S.Ct. 785 (2003), the Court of Appeals applied Pringle to uphold the convictions of the passengers in Montgomery (above) because the one-inch stem was in plain view on the driver’s floorboard and "the troopers had probable cause to believe that defendant was violating various state drug laws – whether singly or jointly." 377 F.3d 591. [Although it is hard to understand how the passengers could be convicted if defendant was "violating various state drug laws" singly!]
In Jacob (above), when one of the passenger/defendants argued that he couldn’t be held responsible for the driver lunging the car forward as the police were trying to stop it, the Court finds that "[t]he Supreme Court, however, has noted that ‘a car passenger ... will often be engaged in a common enterprise with the driver,’ and that it is reasonable for an officer to infer such a common enterprise." 377 F.3d at 580 n. 3. The drugs in Jacob were found in a duffel bag in the trunk of the car. Aside from his mere presence, there was no proof that the passenger was aware of the drug dealing. The drug presumption relieves the prosecution from having to make such a showing.
Likewise, in United States v. Carter, 315 F.3d 651 (6th Cir. 2004) (en banc), where the issue was whether or not the defendant had consented to the entry of his motel room by simply stepping back from the door, the Court finds that "nothing in the record indicates that he was unaware of well-known right to refuse entry." Instead of requiring the prosecution to prove that the defendant was aware of his right to refuse entry, in this drug case the Court simply presumes it. [Based on the number of reported decisions every year where defendants don’t seem to understand that they have a right to "just say no," one could question just how "well-known" such a right is.]
One of the problems with creating exceptions to the Fourth Amendment for drug cases is that, as we have seen in other contexts, exceptions rarely remain in the narrow context for which they were created. United States v. Marxen, 410 F.3d 326 (6th Cir. 2005), is a robbery case, not a drug case. Marxen’s car matched the description of a car leaving the scene of a robbery, but Marxen himself did not match the description of the robbers. Nevertheless, after following him around for a week and not observing any illegal conduct or conduct related to the robbery the police pulled his car over to search it. Marxen was handcuffed and placed in a police car, even though there was not even reasonable suspicion that he had committed any crime. In upholding this action by the police, the Court of Appeals cited to U.S. v. Foster for the proposition that using handcuffs does not exceed the bounds of a Terry stop. Foster, of course, was a drug case that relied for its holding on the drug nature of the offense.
Conclusion - Goose-stepping Down the Path
Nor are these all of the cases in this Circuit dealing with the drug exception, simply some of those from the last year. The trend has been on-going for years and shows no signs of slowing, let alone stopping. While the war on drugs has had many casualties, one of the more significant may be the Fourth Amendment. This is not to suggest that the Sixth Circuit is alone in this move away from Terry. If I had the time (and the constitutional fortitude), I’m sure that I could find similar cases in all Circuits. And let’s not forget that the Supreme Court leads, at least in this forum. [A perhaps more interesting discussion is the extent to which state supreme courts have, in the last decade or so, refused to follow where the Supreme Court has led, insisting instead on finding that their citizens have more rights under their state constitutions than under the federal constitution; a situation that reverses those days when the Warren Court led and the states followed.] While some courts have certainly rushed to follow the Court’s lead in Pringle, there would not have been such a rush if the Court had ruled with more respect for the rights of the citizens than the police.
Lest we get too depressed at this point, let me just say that it is not my intention to send criminal defense attorneys rushing out to find a building to jump off of or a new country to move to. A lot of wrong exists simply because no light has been shone on it. What this trend shows is that it is time for us to go back to Terry (and other bedrock criminal procedure cases) and remind the courts of the principles on which those cases were decided and how far we have strayed from them. Terry was viewed as a major victory by law enforcement (witness the plaque that the Cleveland Police Historical Society has erected on the site from which Detective Marty McFadden launched us down this path [thanks, Dennis, for the tour]), but it is time for us to use it as a sword of our own. We must always remember that in every case we have two clients - the man or woman at our side in the courtroom and the Constitution. As we have seen, we are the only ones in the courtroom who will be arguing to protect those freedoms that are guaranteed there. We must remember that when The Founders (as they have been sanctified) sent the new constitution to the people, the people sent it back saying, we refuse to give this kind of power to any executive, legislative or judicial body without certain protections. The people, who are most often on the receiving end of The Law, knew that even the checks and balances built into this unique document were not enough to protect them from the abuse of power that comes from government of any stripe. The Bill of Rights is truly the work of the people and we are the ones who must constantly fight to protect it for, as we have seen, no one else will. As Winston Churchill said, "What is the use of living if it be not to strive for noble causes and to make this muddled world a better place for those who will live in it after we are gone?" [thanks, Dean] With that in mind, let us name the Drug Exception for what it is and work to oppose its spread. Keep up the good fight!