The War on Drugs and Our Rights

The war on drugs has morphed into a war on “us.”  This war involves overzealous law enforcement caused by overzealous incentives to “ferret out crime.”  The nature of the drug war is that anyone can be a user and anyone can be a seller – so we are all suspects.  Our only protection is our Rights.  The prime method for discovering easily concealed contraband – circumventing our Rights.

You are driving down the road when you notice that you are being followed by law enforcement. A quick check of your speed and you are assured that you have done nothing wrong. The police car remains behind you even though he or she could pass.  You have done nothing wrong but you are still nervous – the person in the car behind you welds awesome power over you. Then the lights come on and you find yourself pulling over – what could you have possibly done to have this happen?

Every stop by law enforcement is an infringement on our right to be free from warrantless seizures.  This is not just a hypothesis by a fringe criminal defense attorney – it is a legal fact.  This Right is found in the Fourth Amendment to our Constitution. The first ten amendments are known as our Bill of Rights. These amendments were considered so important that the States required them before they would ratify the Constitution of the United States. These Rights include the freedom of speech, the freedom to bear arms, the right to be represented by a lawyer, the right to remain silent, and the right to be free from warrantless searches. These were an attempt to keep the power of government in balance with its citizens.

Now we all know law enforcement can pull us over. What we don’t know is the standard that must be met in order for the stop to be legal. In the latter half of the ’90s the United States Supreme Court decided that the standard for a traffic stop was an objective standard – meaning, if law enforcement could articulate that they observed a traffic violation you could be lawfully stopped.

The Officer gets out of his car and approaches you standing about three feet behind the driver’s side door. You have to crane your neck to see him and to hand him your your information. Today you cannot find your registration card. You hand him your license and proof of insurance. He asks you if you know why he pulled you over – you state “No.” He walks back to his car without explanation.

Law enforcement has been funded since the mid-90s from the federal level as well as the local level. In Florida, people found guilty of a crime must also pay for the “cost of investigation” by the police. This was sold to the voters as a “make criminals pay” law.  Unfortunately, all it did was turn law enforcement into a for-profit business. Now, instead of the tax payers benefiting from making criminals pay by subsidized budgeting and reduced taxes, law enforcement receives their tax-dollar funded budget AND their “cost of investigation” fees imposed on people found guilty of crimes.  Can we all see the problem with this situation?

Flush with cash, law enforcement vehicles are equipped with computers in the cars that can access non-public information directly from the Department of Highway Safety and Motor Vehicles. Included in this information is up-to-date records of registrations, driver’s licenses, and insurance coverage.  This means that when law enforcement asks you for your drivers license, registration, and proof of insurance, it is only to see if you are complying with an archaic law necessary before the advent of computers.  Law enforcement already knows if your car is registered, if your license is valid, and if you have insurance before they stop you.

The Officer returns with a ticket for not displaying registration card and for having a crack in your rear brake light lens. It is 2 O’clock in the afternoon. As you are reading the citations he asks if you have any guns, drugs, or other contraband in your car. You tell him “No.” He then tells you that you wouldn’t mind him searching you car since you have nothing to hide. You feel intimidated and you are concerned that if you didn’t want him to search that he would think you are hiding something. Before you can answer another police car arrives. The officer turns and heads over to the new arrival. Your a bit confused and you have not been returned your License or proof of insurance.

The law on traffic stops is very clear. A police officer can stop you for a traffic infraction and can ask you for all the necessary documents and issues regarding the stop. However, you have been detained and any further questioning, especially questioning that is meant to illicit an incriminating response has to be preceded by notifying you of your rights – commonly known as Miranda warning.

The new police car has another law enforcement officer in it and a K-9 officer, a dog trained to smell out drugs. After a minute or two the original officer tells you to exit your vehicle. You are curious why you have to do this – you’ve done nothing wrong – but the intimidation factor is ever present. You exit and watch as the other law enforcement officer walks the dog around your vehicle. The dog stops at several places, puts a paw to the paint and scratches. The officer points at something close to your car and the dog puts its nose to it. He continues to walk the dog around. Once around and the officer takes the dog back to the car. The officer that stopped you gives you back your documents and says have a good day. You get in your car a bit shaken but okay. What has just happened is illegal but it was done by law enforcement.  What can you do?

Law enforcement cannot hold you at a traffic stop any longer than it is reasonable for the officer to explain why you were stopped and the time it takes to issue the citations. The questioning at the end of the stop regarding contraband is legal but you are not compelled to answer or give permission for law enforcement to search you or your vehicle. You also have the freedom to leave – the police won’t tell you this but in court they will cry that you were “free to leave” at the top of their lungs. Asking to search is also legal. Coercing someone to get permission to search is illegal. How does the court determine if you felt coerced?  Typically, they ask the law enforcement officer.  As you can probably see the law is as clear as mud. Just remember, since we all have a right to be free from warrantless searches – searches conducted without a judge’s review – you never have to consent to a search. If asked say “no.”

The detention, starting with being ordered out of your car, is definitely illegal.  The search by the K-9, illegal. What can you do about it?

Since nothing was found and you were not charged with a crime all you can do is complain. You could sue the officers, the police department, and the municipality but your chances of success are very limited. You can go down to the police station and file a complaint – it would start a paper trail – but not much would happen.  Law enforcement looks at this as “no harm, no foul.”  They are just doing their job trying to keep drugs off the streets.

The search for drugs has taken law enforcement down a very low road. Rights of citizens are overlooked in the effort to ferret out crime. I see the instances when drugs are found and an arrest is made. I don’t see all the “misses” that are described above. It is unknown how many people’s rights are infringed for every one arrest but even one is too many.

Eric J Dirga is a criminal defense attorney practicing out of Orlando, Florida. For more information please visit Florida Drug Charge Defenses.