The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [42]
The Ohio Supreme Court, reviewing the case on appeal, was obviously uncomfortable with the blatant fishing expedition for drugs. The court noted that traffic stops were increasingly being used in the War on Drugs to extract “consent” for searches, and that motorists may not believe they are free to refuse consent and simply drive away. In an effort to provide some minimal protection for motorists, the Ohio court adopted a bright-line rule, that is, an unambiguous requirement that officers tell motorists they are free to leave before asking for consent to search their vehicles. At the very least, the justices reasoned, motorists should know they have the right to refuse consent and to leave, if they so choose.
The U.S. Supreme Court struck down this basic requirement as “unrealistic.” In so doing, the Court made clear to all lower courts that, from now on, the Fourth Amendment should place no meaningful constraints on the police in the War on Drugs. No one needs to be informed of their rights during a stop or search, and police may use minor traffic stops as well as the myth of “consent” to stop and search anyone they choose for imaginary drug crimes, whether or not any evidence of illegal drug activity actually exists.
One might imagine that the legal rules described thus far would provide more than enough latitude for the police to engage in an all-out, no-holds-barred war on drugs. But there’s more. Even if motorists, after being detained and interrogated, have the nerve to refuse consent to a search, the police can arrest them anyway. In Atwater v. City of Lago Vista, the Supreme Court held that the police may arrest motorists for minor traffic violations and throw them in jail (even if the statutory penalty for the traffic violation is a mere fine, not jail time).
Another legal option for officers frustrated by a motorist’s refusal to grant “consent” is to bring a drug-sniffing dog to the scene. This option is available to police in traffic stops, as well as to law enforcement officials confronted with resistant travelers in airports and in bus or train stations who refuse to give the police consent to search their luggage. The Supreme Court has ruled that walking a drug-sniffing dog around someone’s vehicle (or someone’s luggage) does not constitute a “search,” and therefore does not trigger Fourth Amendment scrutiny.21 If the dog alerts to drugs, then the officer has probable cause to search without the person’s consent. Naturally, in most cases, when someone is told that a drug-sniffing dog will be called, the seized individual backs down and “consents” to the search, as it has become apparent that the police are determined to conduct the search one way or another.
Kissing Frogs
Court cases involving drug-law enforcement almost always involve guilty people. Police usually release the innocent on the street—often without a ticket, citation, or even an apology—so their stories are rarely heard in court. Hardly anyone files a complaint, because the last thing most people want to do after experiencing a frightening and intrusive encounter with the police is show up at the police station where the officer works and attract more attention to themselves. For good reason, many people—especially poor people of color—fear police harassment, retaliation, and abuse. After having your car torn apart by the police in a futile search for drugs, or being forced to lie spread-eagled on the pavement while the police search you and interrogate you for no reason at all, how much confidence do you have in law enforcement? Do you expect to get a fair hearing? Those who try to find an attorney to represent them in a lawsuit often learn that unless they have broken bones (and no criminal record), private