Are forced urine samples unconstitutional? South Dakota case illuminates the issue

A lawyer who is arguing his client’s Fourth Amendment rights were violated by a forced urine sample is shining a light on the practice by police in South Dakota.

The lawyer for Dirk Landon Sparks is asking a judge to toss the test results used to charge his client with felony drug ingestion, the Argus Leader reports.

The lawyer, Jeremy Lund, argues in a May 16 motion filed in Hughes County that the judge who signed a search warrant for a blood or urine sample didn’t authorize Sparks to be strapped to a hospital bed and a catheter to be forced into his penis.

Article here (via aba journal). 

Implied Consent law: Kansas Supreme Court overturns implied consent (alcohol testing) refusals

An Implied Consent law means that when you as a driver obtain the privilege to drive, you also "impliedly consent" to being tested for alcohol use while you are driving. If you refuse to be tested - say you are pulled over and an officer requests you "blow" for a roadside breath test, you will have violated that "implied consent" and face a fine, or restriction of your driving privilege, or both, depending on the State.

In Kansas, however, the supreme court has struck down the violations, on the basis that they violate a driver's right to unlawful search and seizure under the Fourth Amendments to the Constitution.

Article here (via reason hit & run blog).

From the article - with my commentary in italics:

In the absence of consent or a special justification, searches (of a person or their property) generally require a warrant. That is why every state has an "implied consent" law saying that drivers, in exchange for the "privilege" of operating motor vehicles on public roads, agree to be tested should they be arrested for DUI. If they refuse to cooperate with alcohol testing, they can lose their licenses through an administrative process. Kansas is (or was) one of 13 states that also treat test refusal as a crime.(Michigan does not treat it as a crime, it's an administrative loss of driving privilege. In Michigan, your license will be suspended by the Secretary of State, and you will face that for one-two years, even if you are never convicted of the underlying charge of DUI/drunk driving.)

4th amendment news: traffic stops can't be prolonged for a dog sniff - because of Ferguson?

The Fourth amendment is intended to protect US citizens from unreasonable searches of person and property, and indicates that a warrant, supported by probable cause, is needed for such searches.

However, for certain exceptions, a warrant isn't absolutely required. These exceptions include, but are not limited to: plain view, incident to arrest,  consent, exigent circumstances (in other words, emergency), and motor vehicle. The motor vehicle exception has been expanded sot hat motorists who are stopped for other reasons might be detained until a dog is available to sniff what else might be in the vehicle. This is because if the motorist were allowed to leave, the evidence might be gone forever.

But is it against the 4th amendment - in other words, is it constitutional -- to allow police to detain a motorist until a dog is available?

The Supreme Court rule this week that the answer, thankfully, is no.

But did a majority of the court rule this way due to the recent events in Ferguson, MO? This article in ABA Journal says "maybe."

A U.S. Supreme Court ruling on Tuesday favoring motorists in some dog-sniff cases had an unusual lineup.

Justice Ruth Bader Ginsburg was joined by three of the court’s liberals in her majority opinion, along with Justice Antonin Scalia, who has previously joined with liberals in some Fourth Amendment cases, and Chief Justice John G. Roberts Jr.

An article in Slate offers a possible reason for Roberts’ vote: the Ferguson effect. “Perhaps the savvy, media-aware Roberts has finally learned the lessons of Ferguson and is trading in his logical abstractions for some much-needed legal realism,” the article says.

Slate article 

Opinion article (via  scotus blog).

What does this mean to the average driver? This means that if you are stopped by the police, and you may have raised a suspicion of the officers that your vehicle contains some illegal article, the traffic stop can't last too long, or be prolonged just in order for a dog to be made available! This is good news for supporters of the 4th amendment.

Fourth Amendment win: cell phone privacy protected at US Supreme Court

In a rare 9-0 opinion, the US Supreme Court ruled today that cell phones should be treated differently than other things when a person is arrested.

This is a small victory for the Fourth Amendment, which hasn't gotten much respect lately from courts.

 Article here. (via scotusblog). 

From the Article: 
Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.

Today's argument at the Supreme Court: Is a warrant necessary for searching cell phones of arrestees?

In case you were wondering, the US Supreme Court will hear oral argument today (article here) about whether a search warrant is required for searching a cell phone of an arrestee.

The storyline goes something like this:  If you are driving a car with expired tags, the police might pull you over.  If they do, they will ask to see your driver’s license.  When you give it to them, they will run a computer check and learn that it has been suspended.  So they decide to impound the car.  But before they tow the car away, they search it.  When they search it, they discover two handguns under the hood, so they arrest you.  When they arrest you, they take your smart phone.  When they take your smart phone, they read your text messages.  When they read the messages, they see texts which suggest that you might be a member of a local gang.  Based in part on those texts, they suspect that you may have been involved in a gang-related shooting a couple of weeks ago, and so they look at your phone again, where they find more evidence to support the theory that you belong to a gang and were involved in the shooting.  

At your trial, you ask the judge to bar the prosecutors from introducing the evidence obtained from your phone.  But the judge rejects that request, ruling that the police could search your phone as part of the process of arresting you – a rule known as a “search incident to arrest.”

Driver arrested in Ohio for car's secret compartment filled with . . . nothing

Norman Gurley, 30, is facing drug-related charges in Lorain County, Ohio, despite the fact that state troopers did not actually find any drugs in his possession.
Ohio passed a law in 2012 making it a felony to alter a vehicle to add a secret compartment with the “intent” of using it to conceal drugs for trafficking.

article here.

Motorist sues over cavity searches

Police detained David Eckert for not making a complete stop while exiting a Walmart parking lot on Jan. 2, and officers suspected him of concealing drugs because he "appeared to be clenching his buttocks," attorney Shannon Kennedy told KOB-TV, which reviewed medical records, police reports and the federal lawsuit.

"This is like something out of a science fiction film — anal probing by government officials and public employees," Kennedy said.

article here. 

I'd say this definitely qualifies as an unreasonable search, and a situation where a warrant should not have been granted. 

Does law enforcement need a warrant before using a GPS device?

The Third Circuit says "yes, they do."And, if you're a passenger in a car with a GPS unit on it, you have standing to suppress the evidence that was gained from that search.

Article here.

Update: Even better article here.

What should I do if I get pulled over?

If you get pulled over, remain calm and remember your rights.

1. Don't admit to anything. If the officer asks "You know why I pulled you over, don't you?" answer "No." Aside from being a leading question, this question also affects your Fifth Amendment right (to not incriminate yourself). See related material here. 

2. Don't consent to a search. An officer can do a search without a warrant in some situations, based on what's called "probable cause." This means that if they think it's likely (more than a reasonable suspicion) that evidence of a crime can be found in your car, they can search. Or it could just be that the officer who wants to do the search is bored, a little suspicious, or wants to act like a jerk. Make it clear that you're not consenting to any search at all. Refusing to let the search happen doesn't mean you're guilty, it means you're aware of your rights, like the Fourth Amendment.

3. If you feel so inclined, you can videotape your traffic stop. It's not illegal to videotape police, although it may make the atmosphere feel more confrontational. Again, stay calm and remember your rights. You can also ask (politely, of course) for the officer's badge number and name, or patrol car number. The police are the only game in town, which means they keep doing their job, and we keep paying them, but we have very little say as "customers" of their service. But we can still report their behavior to their superiors, or the media, if need be.

4. An officer can ask for your driver's license, and proof of registration. Michigan has a statute on consenting to this as a condition of being allowed to drive.

5. If you're suspected of driving while intoxicated, an officer may ask you to do a roadside sobriety test. You are free to refuse the tests. What the officer is looking for is probable cause to arrest you. This means that the less you say or do that shows evidence of intoxication, the better off you are. So refuse (politely, of course) to perform the tests. More information here.
You won't get a lighter sentence because you were nice to the officer and did the tests. Doing the tests just gives more evidence, and leads to probable cause = you're arrested.

6. Roadside breathalyzer (PBT). Michigan has an implied consent law. This means that if you are arrested (not just pulled over) for driving while intoxicated, you are considered to have given your consent to have your blood alcohol content (BAC) test. However, the PBT at the car can be refused, and refusing will result in a fine and/or civil infraction. If you are arrested, however,  attempting to refuse the chemical test at the station can have serious consequences.