When Unreasonable Searches Become Reasonable

Tim Sandefur passes along this from Shaun Martin:

You’re sitting in your car, minding your own business, in the parking lot of a motel. A cop sees you and starts questioning you, and you even consent to a patdown search and a search of your car, which finds nothing. What’s the reasonable suspicion? Nothing. But you go along with it to be cooperative.

Things change, however, when the officer says that he’s going to pull down your pants. You demur to the request, which does you no good, as the police promptly put you into a control hold. They put you near their police car, surround you a tiny bit, and in front of anyone who happens to be looking, (1) pull down your pants to your knees and, (2) pull the elastic of your underwear forward so they can see your genitals. And then reach on in to grab whatever they might find.

The Court of Appeal holds that such a search is entirely “reasonable” in scope and effect. [PDF]

Based on the facts in that description, this is indeed an outrage.  Sandefur terms it “the death of the Fourth Amendment (continued).”  Again, based on the quoted text, I’d agree.

Then I actually clicked the link and skimmed the opinion in People v. Anthony Craig Smith.  It turns out that Smith was on parole for previous drug crimes and the court ruled, not unreasonably, that such status came with “reduced expectation of privacy.”  After all, Smith is still serving a sentence for a crime for which he was convicted in a court of law and his freedom is conditional on his good behavior.

Smith was not behaving good.  He was in a known high crime area, sitting in a car outside a hotel room window through which police observed another fellow trying to gain entry.  Learning that he was on parole and having a strong hunch that Smith had contraband in his drawers [Would Alan Greenspan consider that a good sign for the economy?] he conducted the search and found “a large bag the size of a baseball” which “contained 12 smaller baggies of heroin, cocaine, and methamphetamine.”

Now, IANAL.  But I’m pretty sure that keeping such content in one’s drawers is frowned upon, especially if one is on parole for drug crimes.

What prompted Officer Greenberg to suspect that contraband was located there, I’m not sure.  But according to the hyperlinked opinion above, which itself contains numerous citations, California law does not require a reasonable suspicion of wrongdoing if the officer is aware — as Greenberg was — that the searchee is a parolee and therefore “subject to a search condition.”

Were Smith a free citizen of the Republic, this would have been an outrage.  For a convicted criminal on conditional release, not so much.

Photo by Flickr user mjar81, used under Creative Commons license.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Bithead says:

    James; Quite.

    I suspect part of the noise here is a leverage against drug laws, though.

    My guess is that if the perp had a record of ‘illegal’ weapons, and was an outspoken conservative, there’d be less argument about the cop’s methods. [/snark]

  2. Dodd says:

    Were Smith a free citizen of the Republic, this would have been an outrage. For a convicted criminal on conditional release, not so much.

    IAAL and, given the “search condition” included in his parole terms, I agree with this summation.

  3. James Joyner says:

    IAAL and, given the “search condition” included in his parole terms, I agree with this summation.

    Good thing I decided not to go to law school, then. I saved myself lots of money and three years of aggravation!

  4. Dodd says:

    A lot more than 3 years.

  5. James Joyner says:

    A lot more than 3 years.

    Heh. I was just counting the schooling. But, come to think of it.

    My decision to skip law school came from my epiphany that the only jobs lawyers did that I was interested in were prosecutor and Supreme Court justice. The former pays poorly and comes with a good chance of getting shot while the latter is rather a long shot.

  6. anjin-san says:

    My guess is that if the perp had a record of ‘illegal’ weapons, and was an outspoken conservative, there’d be less argument about the cop’s methods /rant

    http://www.youtube.com/watch?v=hnzHtm1jhL4