Court Reminds Police That Refusing A Search Isn't Inherently Suspicious Behavior

It really shouldn't take a judge's order to make this clear to law enforcement officers: a citizen invoking their rights isn't doing anything illegal, suspicious or otherwise signalling an involvement in criminal activity. These are simply their rights and they can choose to assert (or waive) them as they see fit.

But that's what it takes, because almost anything that isn't an immediate capitulation to a law enforcement officer's demands is often met with dubious actions, arrests and deployment of force.

Deborah Barker was arrested for methamphetamine possession after an Oregon police officer performed a warrantless search of the contents of her purse. Her motion to suppress was denied by a lower court, but the state appeals court found otherwise.

From the ruling:

Defendant was a passenger in a truck driven by her husband, which was stopped by Oregon State Police Trooper Ratliff on suspicion of driving while intoxicated. Ratliff noticed that defendant’s husband was “overly nervous” and that there was a bottle of alcohol on the seat, as well as many knives, lighters, and trash in the truck.

We'll stop right here and discuss a couple of things.

First, officers regularly declare people they stop to be "nervous" and use that as the "reasonable suspicion" they need to prolong the stop and start fishing for criminal charges. This is obviously a very handy "tool," because almost every citizen is more nervous than usual when speaking to people who are not only armed, but possess incredible amounts of power.

Judges, fortunately, are pushing back on this assertion more frequently. Just recently, the Tenth Circuit Court pointed out that "nervousness" does not equal reasonable suspicion, although the totality of other elements (rented car in another's name, inconsistent travel plans) certainly did. Another told the DEA that nervousness -- even when combined with three cellphones and a past criminal history -- did not automatically rise to the level of reasonable suspicion. But it still must work often enough, because "nervousness = reasonable suspicion" doesn't seem to be going away.

Second, the condition of the vehicle's interior is also cited as "reasonable suspicion" -- namely that it had trash and lighters in it. Paradoxically, law enforcement almost simultaneously claims that the absence of drug paraphernalia/trash is inherently suspicious. Here it is arguing that a clean car is a drug trafficker's car in a Seventh Circuit Court decision from earlier this month:

A ten-minute search turned up nothing, save for two cell phones. The interior of the car was “spotless” and had no other personal effects, which the officers believed was suggestive of the car being a “trap car” used for drug trafficking.

You can't win. But you can try to even the odds.

Defendant was wearing a dress, and Ratliff did not believe she had any weapons in her pockets. Ratliff asked defendant if she had any weapons in her purse, and defendant replied, “I don’t want you to search my purse.”

The officer asked her to place the purse on the hood of the vehicle for "safety" reasons. (Not completely unreasonable, considering Barker hadn't answered one way or the other on the question about whether the purse held a weapon.) It fell open a little, exposing a small, gray scale. This led to the assumption of the probable cause needed to effect an arrest of Barker, combined with Barker's appearance ("leathery") and "drug history."

All well and good, but the officer then decided to search the purse without a warrant, ultimately discovering a small amount of meth hidden in a wallet. And that's where it ran into problems. First, Officer Ratliff made this assertion, which basically states that "innocent" people don't force cops to respect their rights.

Ratliff went on to note that the “innocent motoring public doesn’t generally have those indicators. They don’t get out of the vehicle and tuck their purse tightly with them and immediately refuse search.”

The lower court bought Ratliff's arguments and refused to suppress the fruits of the warrantless search. The appeals court, however, looked at each element the state claimed added up to permission to warrantlessly search Barker's purse and found them all wanting -- those being Barker's history of drug use, the vehicle's appearance, Barker's appearance ("leathery," clenched teeth), dilated pupils, in possession of a small scale and refusing to allow an officer to search her purse.

As we have previously held, the mere fact that a defendant has a history of drug use does not provide an officer with reasonable suspicion to stop a defendant, let alone probable cause to search or arrest.

[...]

For similar reasons, defendant’s inability to remain still and dilated pupils also contribute little to establishing probable cause.

[...]

[T]he record in this case lacks evidence to support an objectively reasonable inference that, even if the scale was used in connection with controlled substances, it was more likely than not that defendant was in current possession of controlled substances, as residue on the scale or otherwise.

Finally, it addresses the claim that Barker's control of her purse was yet another factor contributing to her apparent guilt.

The state argues that “[t]he strongest indicator that defendant was in possession of drugs was her conduct towards her purse.”

But that's completely wrong, according to the court. It's not a "strong indicator." It's an assertion of rights.

When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, “[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.” State v. Brown, 110…

Although furtive behavior may contribute to probable cause, asserting a constitutionally protected privacy right cannot. Defendant’s protective behavior to safeguard the privacy of her purse and her statement that she did not want it searched are not properly considered as part of the totality of the circumstances and may not contribute to probable cause.

In short (and as summed up in a footnote), police cannot use someone's constitutionally-protected right to refuse a search as probable cause to justify a search. The ruling is reversed and remanded and the police are now in the same position they were before they performed the warrantless search: looking at someone they want to arrest but without the probable cause to do so. And now it's so much worse because the officer knows Barker was in possession of a controlled substance but can't do anything about it. With the evidence suppressed, the single possession charge resulting from this arrest no longer exists.

These rights weren't granted to citizens just so the government could use any exercise of them against those availing themselves of these protections. They were supposed to safeguard citizens against governmental overreach and abuse of its powers, but default mode seems to be that only the guilty assert their rights. This mindset is so perverse -- and so pervasive -- that it has to be beaten back one court decision at a time. Law enforcement officers treat assertions of rights as, at best, an annoyance and at worst, tacit admissions of guilt. To operate under such a twisted interpretation displays an almost incomprehensible level of privilege -- where government agents are owed whatever they request and any failure to cooperate is treated with suspicion.

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