A Stitch in Haste

This Oregon drug case is not one for the ages. I wanted to highlight it, however, if for no other reason than for the sheer purity of its lesson:

In response to [Officer] Hurliman’s request to see what was in his pocket, defendant “reached in his pocket and removed a silver circular rustic metallic tin.” When Hurliman asked if he could look in, defendant became “very agitated and said ‘no,’” said the tin belonged to his brother, and then put it back in his pocket. Hurliman told defendant that he believed the tin contained drugs. Defendant told him to “prove it.”
…
Defendant’s demeanor raised no reasonable suspicion of criminal activity except in one respect — defendant’s objection to and apprehension of Hurliman’s requested patdown and search of the tin.

A person’s reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one’s constitutional rights, can play no part in creating probable cause for a search. We view defendant’s reaction to the inquiries concerning the patdown and the contents of the tin as merely an unsophisticated attempt to assert his right of privacy. Defendant’s reaction to a request for consent that he is constitutionally entitled to refuse cannot form the basis of reasonable suspicion. To hold otherwise and allow the police to use defendant’s assertion of a privacy right as the basis for depriving him of that right would render the promise of Article I, section 9 [and the Fourth Amendment] illusory. [Internal quotes and citations omitted.]

This fleeting episode of police misconduct is merely the bottom of the slippery slope known as, “If you’ve done nothing wrong, then why should you mind?” It completely dismisses the notion that one’s privacy is an asset — an asset that can be trespassed upon and damaged. There is another negative outcome besides “being caught” — and that’s “being searched in the first place.”

Like I said, this case is neither high-profile nor particularly precedential. But it helps remind us that there is in fact a slippery slope regarding searches, subsequent to traffic stops, with less than probable cause.

On that slope we have, most notably, the atrocious 2005 Supreme Court case Illinois v. Caballes, which held that the police can detain you — for just a little while, of course — while they fetch a sniff dog to search for drugs, even if there’s no reason for the police to think you have drugs. (How long is “just a little while”? The police, and the courts, are still working that out.)

We also have the troublesome 2004 border search case, U.S. v. Flores-Montano, where the government literally disassembled an automobile looking for contraband. Not only was there no warrant and no reasonable suspicion (recall that none is needed at the border), but the search was not even deemed “intrusive.” If you’ve done nothing wrong, then why should you mind if they remove your gas tank?

If it is “unrealistic” to be a Fourth Amendment extremist, then surely it must also be unrealistic to be an anti-Fourth Amendment extremist. Each inch down the slippery slope to tin cans in pockets should be fought vigorously by privacy advocates and civil libertarians, and should be permitted by courts only upon government clearing the same sort of high hurdles that apply to First Amendment issues.

The case is Oregon v. Foland, 2008 Ore. App. LEXIS 1801 (December 24, 2008). (Via FourthAmendment.com.)

Previously:
–Supreme Court Upholds “Quick” Dog Sniff of Vehicle
–“Border Search” Policy Should Not Rest with Congress
–NYC to Bring Sniff Dogs Into Subway System