There’s a video from my home state of Tennessee that’s going viral right now. If you haven’t seen it yet, it was shot by a young man at a DUI checkpoint stop on July 4th. Rather than allowing the officer to abridge his rights as a citizen, the young man asserted those rights. The officer became aggressive and subjected the young man to an illegal stop and search of his vehicle. The search turned up nothing, and the young man was eventually allowed to go along his way.
I have a few thoughts about this incident, but first, watch the video:4th of July DUI Checkpoint
Now, let’s talk.
Should this young man have stood up for his rights, or should he have complied with every demand made by the officer, regardless of whether or not those demands were legal or not? He was polite and calm, but he wasn’t compliant. Should he have complied with the officer’s demands, even though he had a right to refuse? Should the young man have consented to a search on his car? While DUI checkpoints have been found constitutional, are there limits to how far the police can go during a stop?
I’m not a lawyer, so I turned to Google to see just what advice there was out there, and while it is clear that the federal government has allowed police to conduct random stops to check for drivers who have been drinking, it is less clear what actions, if any, that the police can compel the driver to take. In many states, while drivers cannot be forced to perform a field sobriety check, or even blow into a breathalyser, ‘implied consent’ laws make such a refusal a crime in itself, often with the same punishment as for DUI. Similarly, while an officer cannot ask for ID, he certainly can ask for a Driver’s License. The distinction is subtle, but important, particularly when there are passengers in the vehicle. While drivers are required in most states to have their license on their person, passengers have no such requirement.
So legally, we’ve got some rights during a checkpoint stop. But should we choose to exercise them, or waive them and allow the police to do their jobs?
There are some folks who believe we should just cooperate with any request the police make. “After all,” their argument goes, “if you don’t have anything to hide, why not let them search?”
How many times have you heard that argument used lately. This DUI checkpoint is the only the latest. The Obama administration’s use of drone technology, often without warrants, to watch suspects has come under scrutiny, as well as the recent admissions by the NSA that they have been spying on US citizens, again without warrants or due process. And over and over, we hear the same excuse. “If you don’t have anything to hide, why does it bother you?” Ironically, it appears that in their minds, the right to privacy covers abortion, but not making a simple phone call. I have a hard time following that logic, but that’s another post.
Instead, let’s look at it this way. If you believe that we should allow the government to search at random and at will because ‘we have nothing to hide,’ then I ask you to go to the nearest public square and spread out everything in your purse, or briefcase if you happen to be a man, and allow complete strangers to rifle though it. Your wallet, your checkbook, your credit cards, your pictures, anything and everything. Your life is an open book right? No secrets, nothing to hide, so no reason for privacy.
“But that’s different!” you say. “They are the police! They have authority.”
That’s the thing; they don’t have the authority any more than a stranger on the street has that authority. Unless they have probable cause to suspect you are a criminal, they do not have the authority to rifle through your personal belongings. That’s the heart of the Fourth Amendment. But, going by appearances, the police don’t give a flip about your rights; they care about doing their jobs. And I’m not saying this in a bad way. I understand the human compulsion that leads to their frustration. Dealing with free citizens is much more difficult than dealing with subjects. Subjects have no rights; you can do your job without worrying about them complaining or filing lawsuits. You have more power, and are better able to do your job. Citizens, on the other hand, can be a real pain in the neck. I get that; I am a citizen and I’m reliably informed by many people that I can be a real pain in the neck. However, the job the [police signed on to do is to protect and serve a free citizenry, not babysit a bunch of cringing serfs.
And let’s go ahead and talk about probable cause for a minute. In the video, you saw the officer coaching the dog to alert, giving him ‘probable cause’ to search the car. You also heard the officer later admit to his fellow officer that the alert wasn’t a good one, and as it turned out that the police found nothing in the car. The alert was false.
That got me to wondering, just how many police K-9 hits turned out to be false? I found out, and hold onto your shorts, because the numbers will astound you.
A group of scientists at UC Davis set up a study in 2009 to see exactly how the K-9’s handler’s expectation affected the K-9’s reactions during a search. What they found was staggering. They set up four rooms, and tested 18 different teams of dogs and handlers. Each group made two passes through the rooms under varying conditions. In some, the handlers were given no expectations of what to find. In others, the handlers were told that some of the rooms would have a target, while others wouldn’t. And there were some runs where the handlers were given a visual cue to determine which rooms had been set up to get a positive alert. In all, there were 144 test runs, 8 for each of the 18 teams. Some rooms had multiple alerts, and in the end, there were 225 alerts by the drug sniffing dogs. They alerted on 85% of the runs, with only 15% of the runs coming up clean.
Here’s the kicker. There never were any positive scents in the rooms. None. The 225 alerts were all false alerts. 85% of the runs were erroneous false positives. The study went on to find that the handler’s expectations did affect the dog’s performance, leading to twice as many false positives as the control runs.
These results have been backed up in the field. In 2011, the Chicago Tribune did a study to determine how many positive K-9 alerts came up with negative results on the search. The Illinois State Police and the Chicago Police Department refused to give any data, but suburban departments supplied three years of data to the paper. They found that 56% of the time a dog alerted, the search came up negative. Interestingly, when the driver of the car was Hispanic, the false positive rate went up to 73%.
Nearly 3/4 of all positive alerts turned out to be false. And there may just be a reason why police continue to allow the dogs to be used. In Nevada, former State Troopers are suing the state under racketeering laws, claiming that the current administration is deliberately using false positive K-9 alerts to confiscate property and money under the state’s asset forfeiture laws.
So now how do you feel about allowing a search? More importantly, how can we as citizens allow an unreliable test like a K-9 dog give the police probable cause to search our homes or vehicles? Making it worse, we know, based on the US Davis study, that the handler’s expectation can affect the dog’s actions, meaning a handler could very well cue his dog to alert when he wants, as appears to be the case in the video above. Are you comfortable giving the police the power to search your property at will?
By the way, stepping things up another notch, several states have built an ‘implied consent’ law on steroids called ‘No Refusal’ nights, where if you refuse a field sobriety test, a breathalyser test, or a blood alcohol level test, the police have the authority to strap you to a stretcher and forcibly extract a blood sample.
Do you still feel like you have nothing to hide, so allowing the police to search your person is okay? Or are you starting to feel like maybe, just maybe, things have gone too far and the police have too much power? If the state can strap you down to a board and take your blood, can you really claim to be a free citizen any more?
As should be fairly obvious by now, I stand with the young man in the video. I can’t do much right now about the laws that have already been passed, but I can certainly stand and defend the rights I have left, and I will do so vigorously. And that includes expecting the police to respect my rights as a citizen, even if it does make their job a little less convenient for them.
UPDATE: According to WSMV TV in Nashville, the deputy involved in this stop, AJ Ross, had resigned from the department once before to avoid termination for failing to show up in court to testify, missing a grand jury appearance, and lying about having insurance after causing a wreck. I have no idea why a man like this is allowed to have a badge, much less a gun.