Americans’ Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” ranks among the most zealously protected freedoms we enjoy in the United States. Yet an ever-growing list of exceptions appears to erode those fundamental freedoms.
Lawmakers in both Oklahoma and Tennessee recently voted to stop some of the search-and-seizure loopholes from growing even wider. They said enough is enough when private contractors started seizing cash and buying blood from motorists.
Fourth Amendment Eroded
Consider some of the legal exceptions lately carved out of Fourth Amendment search-and-seizure rights:
- Courts have allowed trained dogs to establish probable cause in vehicle searches (Florida v. Harris, 2013), found that the use of dogs to identify odors in containers is not actually a search (United States v. Place, 1983) and concluded that the use of a trained dog to identify odors around a vehicle during a traffic stop does not violate the Fourth Amendment in so far as the procedure does not prolong the traffic stop. (Illinois v. Caballes, 2005)
- Relying on a collection of laws and court rulings, secret federal agencies collect private communications for national security purposes then leak the information to law enforcement agencies.
- United States Supreme Court rulings carved out “good faith” exceptions that allowed prosecutors to introduce evidence obtained by police outside the strict terms of judicial-granted search warrants. (United States v. Leon,1979, Hudson v. Michigan, 2006, Herring v. United States, 2009)
- A 2012 ruling allowed police to seize from anyone arrested for “serious crimes” DNA to be used in unrelated investigations, regardless the merits of their arrest or their eventual exoneration. (Maryland v. King, 2013)
- So far, courts have generally allowed civil forfeiture of private assets prosecutors allege were related to illegal activities. (Calero-Toledo v. Pearson Yacht Leasing Co., 1974) The civil process involves a lower standard of proof than criminal proceedings, while requiring the property owner to prove their innocence while facing public officials with a financial interest in winning the case.
Landmark cases only tell part of the story of the way routine yet abhorrent practices have eroded Fourth Amendment search and seizure rights. Police use stop-and-frisk laws to pat down pedestrians who are not suspected of any crime. Police routinely conduct dragnet investigations under the flag of DUI “checkpoints.” As recently as 2012, Tulsa police conducted insurance-card dragnets, stopping all motorists on select streets then citing those who could not immediately show proof of insurance.
Policing for Profit: Enter the Privateer
All of the above scenarios share a common element: they involve public agencies authorized to enforce the law. Enter now the new era of privateers in law enforcement.
During the maritime era, privateers were essentially pirates license by governments to attack foreign vessels during times of war. Privateer in the modern “drug war” have lately been employed to work alongside sworn law enforcement officers. In some cases, they take home cash they seize under color of law. In other cases, real cops waive motorists over to meet private contractors who then offer cash in exchange for blood samples.
When private companies started taking part in roadside traffic stops, though, lawmakers in at least two states unanimously agreed it was time to put a stop to the spread of privatized law enforcement. State legislators in Oklahoma and Tennessee are pushing back against an increasing role of private contractors in roadside traffic stops.
Rent-A-Cops in Oklahoma recently joined police to conduct traffic stops that lead to the seizure of large amounts of cash. In Tennessee, the state House and Senate alike unanimously voted to prohibit state or local police from:
“participating in a voluntary motor vehicle checkpoint conducted by a private company or research institute to collect a human sample from which DNA may be derived from consenting motorists stopped at the checkpoint for statistical studies or research.”
Pull-Over-and-Bleed Traffic Stops
The Tennessee bill (SB1485) narrowly targets a program being conducted nationwide by the National Highway Traffic Safety Administration (NHTSA). In Tennessee, Texas, Missouri and Pennsylvania – as many as 60 communities nationwide, according to the St. Louis Post Dispatch – uniformed police officers wave motorists off the road where they are offered money to “voluntarily” submit blood or saliva samples.
Those who wave motorists into the research stations are often uniformed police, while the personnel collecting the samples for the NHTSA are private individuals. Before the private researchers offer to pay for blood and DNA samples, however, motorists are subjected to an unwitting passive alcohol vapor test.
The tests are voluntary, but they intone a dark harmony with recent news that police – in Oklahoma and elsewhere – are conducting forced blood draws from drivers suspected of drugged driving. New zero-tolerance laws targeting drivers who recently smoked marijuana raise questions about exactly what is up with the nationwide research in which police direct drivers into research dragnets where they are paid to give blood samples.
(Tulsa Attorney Blog: Gurneys, Straps and Needles: No Refusal DUI Tests Resemble Execution Procedure)
Rent-A-Cops and Dogs Seize $1 Million
The practice Oklahoma legislators moved to ban in March, 2014, may be even more egregious than cops working with private companies to buy drivers’ blood during impromptu road blocks. There was nothing voluntary about the way a private company helped seize more than $1 million in cash during traffic stops.
Caddo County District Attorney John Hicks paid Desert Snow LLC what amounted to commissions cash the company seized. Desert Snow’s contract awarded the company 25 percent of any money they seized during an ostensible training program.
(Tulsa Attorney Blog: Private Firm’s Cash Seizures Flout Asset Forfeiture Law)
Desert Snow founder Joe David infuriated a Caddo County special judge when he donned a sidearm and uniform emblazoned with the word “POLICE,” then drove a Bureau of Indian Affairs vehicle to conduct traffic stops along I-40. A drug-sniffing dog provided the company with whatever authority the hired guns thought they needed needed to search vehicles and seize cash.
The unwarranted search and seizures conducted by a private company in Caddo County prompted 90 Oklahoma legislators on March 13, 2014 to unanimously approve House Bill 3417. The law states simply:
“Under no circumstances may a law enforcement agency or law enforcement task force authorize or allow a private non-law-enforcement or non-departmental entity or person to conduct or actively participate in a roadside traffic stop or arrest for a violation of a state traffic law or municipal traffic ordinance.”
House Bill 3417 was then forwarded to the Oklahoma Senate, where it was referred to Public Safety Committee.
Asset Forfeiture Profit Taints Impartial Justice
The private traffic stops along I-40 in Oklahoma highlight the hazards of policing for profit. Yet profiteering is a practice that increasingly defines operation of the criminal justice system even when private companies are not involved.
In Tulsa County, criminal defendants are routinely sentenced to probation where their primary obligation is to make ongoing payments to the district attorney. The DA’s office directly benefits from each case where it can win at trial or persuade a defendant to accept a plea deal – often under the threat of facing more serious charges if they do not plead out their case.
Policing for profit is more than a theoretical affront to lofty principles on which our nation was founded. The practice threatens to undermine the fairness and impartiality of the criminal justice system.
“Impartiality is one of the primary principles guaranteed by the Due Process Clause of the U.S. Constitution. The clause guarantees the right to an impartial tribunal in criminal and civil cases. In Tumey v. Ohio, 1927 the Supreme Court long ago held that an impermissible bias exists when the fact finder has a financial interest in the outcome.”
Miller says the Supreme Court has yet to fully weigh in on the extent to which policing for profit infringes on guarantees of due process. Legislators and courts may eventually see the light of day and move to protect freedoms enshrined on our constitution. As recently as 2013, the U.S. Supreme Court effectively limited the use of dogs to search private homes.
The 2013 court found that – unlike the use of a dog to detect odors from a car or piece of luggage in a public place – when police bring a drug dog onto a person’s residence or curtilage (property surrounding a house) they are effectively conducting a search for which a warrant would be required (Florida v. Jardines, 2013). A pending Supreme Court case may determine the extent to which police may rely on anonymous tips when conducting traffic stops that can in turn lead to asset forfeitures or felony charges (Navarette v. California, 2014).
Reformers and justice advocates often recommend that proceeds from fines or asset forfeitures should be deposited into general funds, and not handed over to police or prosecutors who file the cases. Law enforcement agencies and prosecutors budgets should be based on their workload and need to reduce crime – not on how much cash they can seize or how many individuals they can get placed on probation.
The best recourse for a person whose rights have been violated, however, remains zealous defense by an attorney determined to uphold those freedoms.
Free Consultation: Tulsa Asset Forfeiture Attorney
If you have been subject to an illegal search and seizure in Oklahoma, or your assets were seized scheduled for forfeiture, immediately contact a skilled Oklahoma criminal defense lawyer. You have only a limited time to defend your rights or to prove you are the innocent owner of seized property.