Since many of our supporters may be skeptical of NYPD when it comes to matters of search and seizure, I'd like to clarify that this is a very good thing:

The New York City Police Department wants suspects to sign a consent form before searching their homes or cars, a move that eliminates the need for a warrant and is meant to provide police a layer of legal protection, Newsday has learned.

The initiative was put in place because consent searches are often challenged at trial - and jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said.

At the same time, sources said, there has been concern within the NYPD about a handful of cases in which an officer's truthfulness was recently called into question. [Newsday]

Written consent policies are a win-win situation for police and the public. When consent is given in writing, police have an easier time demonstrating in court that consent was given voluntarily. Since evidence seized during a consent search is almost always legally admissible, defendants challenging such evidence must argue that consent was given involuntarily or not at all. As a result, police spend a considerable amount of time in court defending the manner in which consent was obtained. A written form goes a long way towards resolving such conflicts.

For the citizen, written consent provides a quick reminder that permitting searches is optional, while simultaneously creating an added layer of protection in disputes over whether consent was given voluntarily. The form will go a long way towards resolving widespread concerns about police erroneously claiming to have received consent before conducting a search.

Finally, there's an additional important point illustrated here. As Newsday reports, "jurors too often believe the suspect's claim that police never got permission to conduct the search, police sources said." For anyone questioning the viability of refusing consent during a police encounter, this should go a long way towards explaining how asserting 4th Amendment rights can help citizens achieve a more desirable outcome. It serves as a helpful reminder that, even if police violate your rights and search despite your refusal, any evidence they discover can be effectively challenged in court. Obviously, this is a frequent occurrence if NYPD cites such outcomes as a reason for moving towards a written consent policy.

Given the significance of the citizen's decision whether or not to permit police to look through his/her belongings, a written form is just the obvious, common sense approach to establishing whether consent was given.

Update: Pete Guither at DrugWarRant has a good post discussing the NYPD policy and explaining why it is never in the citizen's interest to consent to a police search.

Check out this comment on our blog, which accuses Flex Your Rights of compromising police work by helping serious criminals evade prosecution:

"With no physical evidence, no ability to interview the suspect, no ability to conduct a warrantless search, and no ability to develop probable cause for a search warrant, how will an investigator successfully prosecute a rape? a murder? a robbery?"

I understand that concern, but there's a simple reason why it's far overblown. The crimes that take the biggest toll on our communities aren't solved through warrantless searches. Police who are investigating a rape, robbery, or murder aren't using consent searches to investigate their suspects. Overwhelmingly, consent searches are used to attempt to discover crimes that weren't known until the search was conducted. They have absolutely no impact on clearance rates for reported crimes.

With regards to the 5th amendment right against self-incrimination, police must give Miranda warnings before conducting a custodial interrogation anyway. Regardless of our information, or the Miranda warning, many guilty suspects will continue to confess when confronted with the evidence against them.

The situations in which our advice to remain silent is more likely to make a difference is in cases in which the police suspect a crime may be afoot, but don't have evidence and must intimidate the suspect into self-incrimination, i.e. "If you have drugs, we're gonna find 'em. You might as well just hand it over and we'll go easier on you." Again, this will have no effect on clearance rates for reported crimes, except, ironically, to the extent that this type of policing draws resources away from investigating unsolved violent crimes.

There are exceptions, of course, and the possibility that a guilty person may evade prosecution for a serious crime by asserting constitutional rights always exists regardless of our website. That's a risk our forefathers took when drafting a constitution that's designed to make it very hard to convict the innocent. Sometimes the guilty must go free in order to preserve the integrity of our constitutional principles and protect law-abiding citizens from the potentially life-changing consequences of being in the wrong place at the wrong time.

I could go on all day about this, but the best evidence that our work isn't undermining good police work is that police aren't opposed to it. Many officers actively support the work that we do here. They do not, for the most part, share this dismal assessment of the potential harms contained in public know-your-rights education, for the reasons listed above, among others. We've gotten a few angry emails from law-enforcement, but far more that are appreciative. Our supporters include former Seattle Police Chief Norm Stamper, former San Jose Police Chief Joseph McNamara, National Black Police Association President Ronald Hampton, and many other current and former law enforcement professionals.

Good police work seldom requires that the suspect foolishly waive constitutional rights or recklessly incriminate him/herself. We've accompanied on-duty law-enforcement around Washington D.C. and observed urban police work first-hand. At no point did 4th or 5th amendment protections become an obstacle to the officers we spent time with, and we dealt with some very serious incidents.

In sum, we've put a considerable amount of thought and research into the implications of our work and concluded that the benefits far outweigh the potential costs. Over the past five years, that conclusion has been thoroughly supported by the feedback we've received from both police and the public.

Professor Duane from Regent Law School has a speaking style similar to Regis Philbin on methamphetamine. As a result this compelling 27-minute lecture flies by.

Duane cites multiple examples of how intelligent and powerful people have fallen prey to their mistaken believe that they are equipped to speak to criminal investigators. However, the most notable portions of the lecture are when he describes how easily a police interrogator's misrecollection can be used to crucify a perfectly innocent suspect who tells only the truth.

[Thanks to Tim Lynch for the tip]

This is creepy:

AKRON, Ohio - A medical examiner must change her autopsy findings to delete any reference that stun guns contributed to the deaths of three people involved in confrontations with law enforcement officers, a judge ruled.

Friday's decision was a victory for Taser International Inc., which had challenged rulings by Summit County Medical Examiner Lisa Kohler, including a case in which five sheriff's deputies are charged in the death a jail inmate who was restrained by the wrists and ankles and hit with pepper spray and a stun gun. [kstar.com]

I can't speak to the specific cases at issue here, but we're hearing more and more about this dubious "excited delirium" diagnosis that's being offered when people die in police custody. Drug use is often a factor, thus we must consider the possibility that tasers, though not typically lethal, may pose heightened risk of fatality when used on people who are under the influence. After all, people who are super wasted are among the most likely recipients of a thorough tasing by police.

I wouldn't want tasers to be erroneously identified as a cause of death, but as fatal outcomes involving these weapons are reported with increasing frequency, it's clear that more research is needed. In the meantime, scratching these weapons out of autopsy reports sounds to me like the opposite of what we should be doing to address growing concerns about their alleged safety.

From yesterday's New York Times:

More than two decades after President Ronald Reagan escalated the war on drugs, arrests for drug sales or, more often, drug possession are still rising. And despite public debate and limited efforts to reduce them, large disparities persist in the rate at which blacks and whites are arrested and imprisoned for drug offenses, even though the two races use illegal drugs at roughly equal rates.

Two new reports, issued Monday by the Sentencing Project in Washington and by Human Rights Watch in New York, both say the racial disparities reflect, in large part, an overwhelming focus of law enforcement on drug use in low-income urban areas, with arrests and incarceration the main weapon.

It's essential that this type of research continues, although I think we know now what to expect when scholars take a look at the racial breakdown of our prison population. Our press and policy makers need to be aware of the impact this lock 'em all up mentality is having and if that means documenting these same depressing disparities every six months, then so be it.

I also think this shows the need for some new angles in the broader struggle for criminal justice reform. Hmmm, maybe some sort of innovative film project could be helpful?

In a fascinating NYT article on overzealous marijuana policing in New York City, I found this rather revealing passage:

"I came out of the building, and this unmarked car, no light, no indication it was police, was right on me,” said the man, a Latino who asked that his name not be used because he was concerned about his job. "Right on my tail. An officer got out, he said, 'I saw you walking from that building, I know you bought weed, give me the weed.' He made it an option: 'Give me the weed now and I will give you a summons, or we can search your vehicle and can take you in.'"

He opened the console and handed them his marijuana — making it "open to public view."

"I was duped," he said. But the deception was legal, and his pot wasn’t.

The officers escorted him in handcuffs to the unmarked car.

Amazingly, police must actually trick citizens into displaying their marijuana in order to make an arrest, since New York's marijuana decrim law requires plain view discovery. NYPD officers have become quite adept at initiating this through the typical threats and coercion that have long been the hallmark of petty drug war police practices.

It's a terrific, yet disturbing, example of how police can intimidate citizens into incriminating themselves. As always, the best strategy is to ignore incriminating questions and ask if you're free to go. After all, cooperating with police who are trying to arrest you just might get you arrested.

Today's Supreme Court ruling in Virginia v. Moore upheld the use of evidence seized during arrests that are illegal under state law. It's a terrible ruling to be sure, but it's hardly the deathblow to our 4th Amendment rights that some may assume. As always, we hope concerned citizens will take a moment to learn what the ruling does and does not do and remember that asserting your constitutional rights during police encounters remains the best choice.

David L. Moore was arrested for driving on a suspended license, subsequently searched and found with crack. It turned out that under VA law he should have been issued a citation and not arrested, thus the search that followed his arrest (and turned up the crack) shouldn't actually have happened. The Supreme Court unanimously upheld the evidence anyway, finding that when officers have valid probable cause to believe a crime has been committed, they may arrest and search the suspect, even if state laws prohibit arrests for that particular offense.

As absurd as it is to uphold evidence seized in violation of state law and allow that evidence to be used in state court, my main concern with this ruling is that it will be widely misunderstood to permit illegal arrests and searches on a massive scale. It doesn't do that. We're not talking about any illegal arrest, we're talking about arrests for actual crimes that police can prove, but for which suspects aren't typically cuffed and taken downtown. So yes, the ruling is disgraceful, but the circumstances under which it applies are relatively narrow.

The worst-case scenario here is that police may, in some cases, perform arrests for misdemeanor offenses that normally result in a ticket simply to justify a search of the suspect or his/her vehicle. That's awful, but it's not a new problem. This same concern has been voiced for some time with regards to the Court's rulings in Whren v. U.S. and Atwater v. Lago Vista, which combined permit police to stop vehicles for any observed infraction and perform arrests for any misdemeanor offense.

The real problem here is that police have long been permitted by the Court to search the suspect (U.S. v. Robinson) and the passenger compartment (New York v. Belton) of the vehicle when any arrest is made. The policy is intended to provide for officer safety and prevent the destruction of evidence, yet an arrested suspect is typically handcuffed and rendered immobile before the search even takes place. Moreover, there's no rational basis to assume that someone arrested for driving with a suspended license, for example, would attempt an escape or try to destroy evidence to begin with.

In sum, today's ruling possesses fundamental logical flaws, but doesn't expand police power in any substantial new directions. The worst aspects of the Moore decision are derived from prior bad rulings that we've already been living under for a long time. This Supreme Court is no friend of the 4th Amendment, but the damage they've inflicted is compounded when civil libertarians respond by prematurely eulogizing our constitutional rights. Anyone who needs a reminder that the 4th Amendment ain't dead should check out these glorious success stories.

A couple weeks ago Scott and I joined the National Capitol Area ACLU for a door-to-door outreach effort in Southeast D.C. warning citizens about a "knock and talk" program the DC Police Department threatened to implement.

This short video, which was my first behind-the-camera creation, tells the story:


I couldn't have scripted this much better: At about 1:35 into the video, a woman mistakes us for the police and eagerly invites us in to search her home. It's funny, but it proves our point about why this information is needed. (For all she knows, someone could have left some marijuana under her couch cushion for an officer to find and get her and her family kicked out of public housing.)

Responding to the unexpected public backlash generated through such community outreach, DC Police Chief Lanier recently announced that her so-called Safe Homes initiative would be scaled back. Under the new plan, police will not go door-to-door requesting consent. Citizens wishing to be searched must instead call the police and invite them into their homes.

In other words, the good guys won, and Chief Lanier was left to take the blame for her hare-brained initiative.

For a refresher on how to refuse home searches, watch this.

This is one of the smartest 4th Amendment decisions I've seen in a while:

The Alaska Court of Appeals on Friday put law enforcement agencies on notice that it would not tolerate "implicitly coercive" search requests during traffic stops. The warning came in the form of a ruling on the case of Susan S. Brown, a driver pulled over on November 24, 2004 allegedly because of the light illuminating her car's rear license plate was dirty.

On that night, Alaska State Trooper Maurizio Salinas never explained to Brown the reason for the stop, nor that he had no intention of issuing a ticket. Instead, Salinas convinced Brown to allow him to search her car and her body -- even though Brown had no warrants and showed no signs of illegal conduct. Salinas testified that his policy was to conduct as many random searches as possible during traffic stops. In this case, Salinas discovered a crack pipe hidden in Brown's coat. Speaking for the unanimous court, Judge David Mannheimer found that such search requests not based upon any reasonable suspicion of criminal conduct abused the rights of motorists.
…

"Motorists who have been stopped for traffic infractions do not act from a position of psychological independence when they decide how to respond to a police officers request for a search," Mannheimer wrote. "Because of the psychological pressures inherent in the stop, and often because of the motorists' ignorance of their rights, large numbers of motorists guilty and innocent alike accede to these requests." [thenewspaper.com]

We'll have to wait and see whether Alaska's Supreme Court picks up the case, but if allowed to stand, this decision should significantly undermine precisely the type of "fishing expedition" policing that Flex Your Rights so vehemently opposes.

This ruling reaches the right conclusion for the right reasons, and provides a helpful example of the 4th Amendment's potency at the state level. When you are stopped by police in your neighborhood, it is not George Bush or the PATRIOT Act that determines whether or not your rights were violated. Each state has its own Bill of Rights and sets its own constitutional standards that must be respected by law-enforcement. Those who habitually lament the supposed "death" of the 4th Amendment would do well to familiarize themselves with this concept.

A citizenry that understands and appreciates 4th Amendment rights is more likely to produce and appoint judges who will rule in this way. Thus, while we must recognize and expose the many threats to the 4th Amendment that have emerged in recent years, it is essential that such conversations do not indulge the same sense of defeatism that leads citizens to waive these rights in the first place, when they matter most.

This Saturday the National Capital Area ACLU is organizing a training day to educate the community on how to prevent warrantless police searches of their homes. Scott Morgan and I will be there representing FyR, and I'll try to get some interviews with my new video camera that I'll post online.

This event is in response to MPD's new "Safe Homes" initiative, which sends officers out to act as door-to-door canvassers asking residents to voluntarily let them search their homes for illegal guns. (FYI: Until the SCOUS rules otherwise, handgun possession in DC is a felony).

Needless to say, many residents aren't appreciating these unsolicited offers. Oh yeah, if the police are at your door, be like Valerie.