Watch us watch the cops watch you (while watching COPS)

BAD BOYS, BAD BOYS, WACTCHA GONNA DO... whatcha gonna do when they come for you...?

Each week this annoyingly catchy tune ushers in one of the stranger pop-culture oddities to be vomited out of the waning years of this millexnnium. For eight years the television show COPS (Saturday 8:00 pm ET, Fox) has entertained and presumably educated viewers by placing them in the passenger seat of cop cars in cities across the country, offering them a first-person look at the dirty details of police work as it happens. The show ã initially aimed at armchair law enforcement buffs ã has a decidedly authoritarian slant. COPS' viewers are encouraged not to question police actions and tactics, but to view every police officer as a hero and every suspect as a "bad guy." Yet, when viewed through a slightly different lens, the COPS show can be an illuminating look at the mindset of many cops, and the constitutional legality of everyday police procedures.

Since 1996, a group by the name of Spectral Mindustries has been transmitting a free e-mail publication entitled The Copswatch Report, which provides legal commentary on situations featured on COPS. The intent of Copswatch is to "teach you how to protect your privacy and confront illegal police tactics by simply knowing and invoking your constitutional rights." Instructions to subscribers are simple: videotape the week's episode of COPS, then watch the tape while following along in The Copswatch Report (which is automatically e-mailed out the following Monday morning).

Copswatch features the legal analysis of Richard Glen Boire, a practicing attorney in Sacramento, California. He is also the editor of The Entheogen Law Reporter (TELR), and author of the books Marijuana Law, Sacred Mushrooms and the Law, and the forthcoming Pharmacopoeia Prohibita. The following is a selection of some of the most interesting Copswatch Reports from this past year, which we've dubbed The Best of Copswatch.

Copswatch Report No. 25
June 21, 1997 - Florida

Segment 1, Robbery Call

Facts: The segment begins with Deputy Miller responding to a reported robbery outside a convenience market. The robber has fled on foot into the woods approximately fifteen minutes earlier. The cops bring out a police dog and give it the command to track down the robber. They follow the dog as it leads them into the woods to a small house. The front door of the house is wide open. The cops notice several potted Cannabis plants on the home's front porch.

Suspicious that the robber may have run into the home, the cops yell for him to come out, but receive no response. After several warnings they release the police dog into the house and follow it inside. No robber is found, but additional Cannabis plants are found inside the home. A narcotics unit is called in and evidently arrives with a search warrant just as the home's resident returns. He does not meet the description of the robber. The robber is in fact never caught -- but the resident of the home is arrested for cultivation of Cannabis.

Commentary: We see here another serendipitous discovery of a Cannabis crime. This segment raises numerous legal issues, all of which are resolvable without difficulty and none of which will benefit the alleged grower.

The initial discovery of the Cannabis plants outside the man's home, was completely lawful. Although the plants were evidently on private property, they were left in plain view of anyone who might approach the outside of the home, including police officers. By exposing the plants to anyone who happened upon his property (including police officers), the resident gave up any reasonable expectation of privacy he might have had with regard to the plants. Even had the cops not found more plants inside, the discovery of the outdoor plants would have been probable cause for the police to obtain a search warrant for the home.

The initial entry into the home by the police was done without a warrant and would, therefore, be presumptively unconstitutional. However, in this case the police could easily overcome that presumption by relying on the "exigent circumstances" exception to the warrant requirement. Under the exigent circumstances doctrine, police are permitted to make a warrantless entry into a home if emergency circumstances justify such an immediate entry. Lawful warrantless entries have been upheld in instances where officers could see or smell smoke coming from a home; could hear screams and shouts coming from inside a home; or (as in this case) while officers were in hot pursuit of a suspect seeking refuge in that particular home.

While the police in this instance never actually saw their robbery suspect enter the home, the facts that the dog had led them there and that the home's front door was standing open made it reasonable for them to conclude that the robbery suspect might have snuck inside. Therefore, most courts would hold that under the totality of the circumstances, the officers in this segment acted under enough of a reasonable suspicion to justify a warrantless entry. The subsequent search warrant was validly based on the outdoor observation of the Cannabis plants as well as the discovery of additional indoor plants.

The principal legal lesson taught by this segment is that people seeking maximum constitutional protection for their actions must protect their privacy by keeping their private activities out of plain view. Placing outlawed plants near the entry way to your home is just not smart -- no matter where you live.

Segment 2, Domestic Disturbance Call

Facts: Sgt. Burns responds to a domestic disturbance call. The man involved tattles on his girlfriend, telling the cops that her car registration tags are expired. This prompts the woman involved to tell the cops that the man just hid some marijuana in the shed before they arrived. The man shakes his head in disbelief and tells the cops that they are welcome to search the shed if they'd like. Of course, Sgt. Burns does not pass up the opportunity, and the search uncovers a small amount of Cannabis and a pipe.

Commentary: Not much to say here that isn't obvious. The main legal point is that just about any time a person offers to allow a cop to make a warrantless search, the cop will gladly jump at the opportunity. Here, Sgt. Burns would not have had a right to search the shed without the man's consent (or the woman's, but only if she was his roommate and shared access to the shed with the man). It was foolish for this man to think that by casually telling the cops they could search if they'd like, that the offer would cause them to forgo the search by figuring that he must not be hiding anything. Many people arrested for marijuana-related crimes can attest to the fact that by consenting to a search you will never convince a cop that you are free of contraband. There is a far greater probability that the cop will tak e you up on your consent and conduct the search. Anything he or she finds can and will be used against you.

Segment 3, Traffic Stop

Facts: Officer Hemberger receives a very vague report that a certain car was seen stopped in a "high narcotics area." The officer spots the car on the road and, after following the car a bit, he says it is "driving a little erratic." (Presumably the officer suspects that the driver is under the influence of drugs and/or alcohol.) The officer stops the car, orders the driver out, and immediately spots a bundle of cocaine in plain view near the driver's seat. The driver is immediately arrested for possession of cocaine. Subsequently, another officer finds that ashes in the car's ashtray tested positive on a spot test for marijuana. The man's car is impounded, and the officer says that they will be taking steps to seize it under Florida's forfeiture laws.

Commentary: The vehicle stop in this case is questionable. Being in a "high crime area" is not by itself sufficient grounds to detain a person -- and simply seeing a car stop in such an area is also insufficient to detain the driver. Here, however, Officer Hemberger follows the car a while and then claims that its driving is a little erratic. He uses that observation to justify stopping the vehicle to investigate possible drug use or purchase by the driver.

This is a close call. A good defense attorney would argue that all the facts here, even in their totality, failed to raise a reasonable suspicion that the man was either involved in a drug deal, or driving under the influence of drugs or alcohol. A hunch that someone is engaged in criminal activity is not considered sufficient justification to detain them. If no actual traffic laws are broken, and no actual crimes are witnessed, simply "driving erratically" is questionable grounds (at best) to reasonably suspect someone of committing a crime. However, in most cases like this, the alleged "erratic driving" would be enough to tip the court's decision and allow reasonable suspicion for driving under the influence.

Assuming that the stop of the vehicle was lawful, then everything else which follows is also lawful. Under a recent Supreme Court decision, the police are now permitted to order a driver out of his or her car upon any lawful vehicle stop, so remember that. You never know when you may be pulled over for the stupidest little thing, so it is generally considered a bad idea to leave a bundle of cocaine in your car in plain view.

As to the positive test for marijuana, I doubt that any conviction would result. Most states require proof (for a possession conviction) that the person possessed a "usable amount" of contraband. Ashes certainly aren't usable for drug-taking purposes. On the other hand, there are some states which will sustain drug possession convictions so long as there was merely a "measurable amount" of an illicit substance. I don't know which rule is in effect in Florida. In any event, I question whether any amount of marijuana ashes alone would be sufficient for conviction since they are not outlawed substances.

Many states, evidently including Florida, have laws that permit the government to seize property when it has been used "to facilitate" a drug crime. Some states permit the seizure of an automobile if any amount of contraband is found inside it, while other states set minimum limits before seizure is authorized. It is likely that the legal costs this man would incur in fighting the forfeiture would be greater than the value of the car - a common circumstance. He stands to lose less by simply giving up his car, as do most victims of the forfeiture laws.

Copswatch Report No. 9
March 8, 1997

Segment 1, Disturbance Call dine and dash

Facts: Deputy McCurdie responds to a restaurant's call reporting that a person just left without paying. The restaurant gives a good description of the suspect: a white female approximately 35 years old, white shirt and black tights, carrying an umbrella. Deputy McCurdie spots the woman at a telephone booth and contacts her. The woman claims that she left money on the table for the meal, but she also has an elaborate story about someone impersonating her. Her story gets weirder and weirder, until it's so bizarre that it becomes clear she is mentally unstable.

At one point in the encounter, Deputy McCurdie asks the woman if she has any weapons and she says "no." The deputy then asks her if he can check in her two purses, just to assure himself that she is not hiding a weapon. She consents. Inside the purse, Deputy McCurdie finds urine samples that the lady says she has been collecting and saving because someone is trying to poison her. Deputy McCurdie does not find any incriminating evidence, but the woman is nevertheless arrested because she has an outstanding warrant.

Commentary: This segment shows a "consent search," a very common and completely lawful technique used by cops to search a person or container for which they do not have a warrant. I see more clients arrested on personal possession drug charges as the result of consent searches than for any other reason. It's usually impossible to do anything to help such a client.

As this segment illustrates, when a cop would like to search a container for which he or she does not have a warrant, the cop will often ask the person to consent to the search. A cop's request for consent can be phrased in many ways. In this segment, for example, the cop asked for consent by telling the woman that he just wanted to make sure she didn't have a weapon. Phrasing the request this way makes it appear more reasonable and less threatening to the person. Some other common phrasing to look out for is:

"Would you mind opening the trunk please?"
"Can I have the key to your trunk please?"
"You don't mind if I look in your backpack do you?"
"Would you please empty your pockets, and put everything on the hood of my patrol car?"

As you can see from these examples, a cop's request for consent to search can often sound like a mild command. Don't be fooled. All of the above requests are equivalent to saying, "Would you mind waiving your Fourth Amendment protection against unreasonable searches so that I can rummage through your private belongings in search of incriminating evidence that might permit me to arrest you?"

You should never waive your Fourth Amendment rights, but that is exactly what you do when you give consent to be searched. You have nothing to gain and much to lose by consenting to a warrantless search. Oral consent is valid, so don't mistakenly think that just because you never signed a consent waiver your consent was ineffectual.

If you are unsure whether a cop is asking for consent as opposed to ordering you to do something, it is a good idea to ask the cop: "Are you asking me for consent to search or are you ordering me to (carry out your command)?" If the cop says he or she is asking for your consent, you should apologetically respond that you cannot consent to a search right now because you are late for a date, are meeting somebody at the movies, need to get home to get some sleep, have to get to work... Any excuse is better than giving consent. If you appeal to the officer's mercy and earnestly explain that being detained without due cause would be an unjustifiable inconvenience for you right now, there is the rare chance that a police officer will just let it drop and let you go with a warning or a citation. However, this will not always work. If the cop tells you that he is ordering you to open something or remove items from your pockets, you should nevertheless tell the cop that you cannot give consent for any warrantless search. If a cop insists that you open a container or empty your pockets, simply refuse and make him or her do it themselves. Never say, "If you want to search my car (or my purse, or my pockets...), you have to do it yourself," because this can be construed as consent. Just flatly refuse and give them no alternative. If they persist and go through your pockets or vehicle without consent, there is then no way they can later claim that you consented to a search by willingly handing over a container or emptying your pockets.

There's much more to say about consent searches, but the above is a good place to start. We'll no doubt return to this topic in the future. The bottom line is never consent to a warrantless search.

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