From Vermont

I just received this interesting email from the po-po in Vermont (oh, I chuckle at my own wit… because somehow I imagine police in Vermont don’t get called “po-po” much).

Professor,

Love reading your web site. I like your perspectives on these issues you write about. I was just reading your articles on “Balancing Security and Liberty” and “Buckle-Up or the Lock-Up.” After reading these two, you need to move to VT as you might like our supreme court. We, the police are losing a lot in terms of search and seizure.

A while ago we lost searching a vehicle without a warrant. Our supreme court said if we have established PC [probably cause] at the roadside, we can offer the operator a “consent search.” If they decline, then we can seize the vehicle and get a warrant. The court at that time felt the vehicle can be easily seized and we take the time to get a warrant. We’ve gotten used to this one.

Most recently we lost or are losing search incident to arrest [that’s the right search somebody after you lock them up]. I and my colleges in VT feel they’re going to far. An officer arrested a suspect for DUI, searched his vehicle incident to arrest. Only the lung-able wingspan and under the operators seat. Under the seat the officer I believe found stolen property or may drugs. He was charged and convicted for it. The suspect appealed his case all the way to the high court. They ruled 3-2 in his favor that the search, under the VT constitution, was unreasonable.

The most recent was another search incident to arrest. The person was arrested on a warrant. He was handcuffed and searched. The police found a small bag or sack in his pocket that had drugs in it. He was charged and convicted. He appealed. The court, on a 3-2 decision ruled that we needed a warrant to get into the bag or sack. These two decision, in my opinion are extreme. We’re way beyond a Terry Stop or a security type search. Even one of the descending justices said just on an officer safety issue, it is justified.

On this one, “Old-School Cops in a New-School World” my chief would agree with you here.

I’ve always liked Vermont. Too bad I don’t ski. Good beer. Good weed, too, I hear (hey, seems like half the kitchen staff I worked with in Boston were hard-core stoners from Vermont).

I’m always torn on these issues of searches. Because as a former cop, I love tools for cops to find shit. But generally I support rules limited police searches. I don’t think the government should have the right to be in everybody’s business. That’s not what the country was founded on.

It really does bother me that people are arrested and cars towed simply because police want to search somebody and their stuff. If you’ve got probably cause, that’s one thing. But it you don’t, an arrest shouldn’t be the answer.

Without knowing much at all about how police work in Vermont (I imagine it’s a little more polite—on both sides—than we police in parts of Baltimore).

But I don’t support search incident to arrest if it means people are arrested so that police can search them. Officer’s need to search for their safety; it’s just so much abused to find drugs. I simply don’t know how you get police to follow the spirit of the law.

In New York State, by the way, any drugs found during a Terry Frisk cannot be charged against the person (though of course the drugs will be seized). I think that’s a great rule. But of course my cop friends here in NYC tell me there are plenty or ways to get around that (like say you found them on the ground). Still, if police are willing to lie to prosecute, that’s on them.

Here police stop and frisk for guns. That’s controversial, but legal and I suspect ultimately good. Stopping and frisking for drugs and both illegal and wrong.

I’ve never understood the logic of being able to search the whole car when you tow it (granted I did, too). I mean, if it’s technically “for inventory,” but we all know that’s bullshit. Why can’t a driver just say no, you don’t have to inventory my contents, I trust you.

I guess it all just comes down to the fact that I’m both pro-police but also pro 4th Amendment and against the war on drugs. I think citizens give up too many rights because of the war on drugs. Too many police push our Constitution to the limit because they want to find drugs. Why are they so obsessed? If we’re concerned about bombs, that’s one thing. Then find bombs but don’t go for anything else. I say this in my “Balancing Security and Liberty” piece–by the way, of all my op-eds, that’s my favorite.