This is the story of how I came to find myself sitting with a dog in an Omaha police SUV — because of a bumper sticker and the specter of terrorism.
If you’re not one of my two regular readers, an introduction: I recently graduated from law school and took the California bar. I embarked on a roadtrip across this great country, reasoning that I’ve always wanted to and that once I find gainful employment I’d be unlikely to have this opportunity again.
For the last month, I’ve essentially been living out of my car, a 2003 Jetta with California plates (inside a “law school alumni” license plate frame, mind you) and a couple of bumper stickers that would likely be meaningless to those without an interest in jam-band culture (hey — at least I’m not a Juggalo):
My ad hoc home-on-wheels has served me well as I criss-crossed the country, from New Orleans to the Outer Banks, through New England, and across the Midwest. My car contains — among other things — my dirty laundry, some legal papers, and my laptop and phone, both containing data I’d never show anyone else, whether because it’s my personal messages or because it relates to my work for lawyers and a judge.
What my car does not contain are drugs or bombs.
I have an acute sense of when I’m going to be pulled over, and it always happens in one of two ways. Half the time, the officer will pull me over almost immediately for a traffic offense I’m aware I’d committed (e.g., speeding), write me a ticket or warning and ask a few stray questions, and I’m on my way.
It’s when I know I’m going to be pulled over and the officer doesn’t do so immediately that I’m worried. The officer will trail me for awhile, waiting for me to make a mistake. And I’ll make a mistake — the average driver makes a mistake justifying a stop every minute. In these cases, the officer isn’t interested in remedying or deterring traffic safety, but in exploiting that mistake to develop probable cause to search. Why? Remember the Phish sticker?
The Omaha officer followed me in my blind spot for about five miles before signalling me to the side of the road. I turned off the car, put my key on the dash, and proceeded through the usual license-and-registration script, never moving my hands without telling the officer what I was doing — he has a gun, after all.
The officer invited me to join him in the passenger seat of his SUV while he wrote me a warning and immediately pointed out the Phish sticker. He began writing a warning for following too closely — at the same distance as every other car around me (which, I concede, is not an excuse, but offered here for the context of what he said next). The officer told me that he was working on counterterrorism and drug interdiction and that he pulls people over “for pretty much any reason” in order to further those investigations. He called in my license number for a want-warrant check and slowly began writing the written warning (because taking his sweet time to write a warning also means he has time to develop probable cause without running afoul of the Fourth Amendment). It was at about this point that he used his cell phone to call another officer to assist him in the inevitable search.
He interrupted our brief conversation in order to check the my car’s VIN for the ticket. While the VIN is visible through the windshield on most vehicles (including mine), he first opened my driver’s-side door, ostensibly to check the VIN on the removable sticker in the door jamb, before actually getting the VIN from the windshield. It wasn’t the sticker-based — and therefore unreliable — VIN he was interested in, but in the opportunity to look around my car without probable cause in order to develop probable cause for a full search.
After returning, the officer brought out the canine and walked him around my car three or four times. The dog sniffed a lot, but never barked or scratched. This is important because I later asked the officer what the dog’s “alerts” — signals to the officer that the dog has detected whatever scent he’s trained to pick up — were. In this dog’s case, he explained that the alerts were barking and scratching. Though the dog did neither in its orbit of my car, the officer told me the dog “seemed interested” in my trunk. No alerts, just “interested.”
After returning to the SUV and taking his time to write out the short warning form, he asked me a few more questions and said he was waiting on the warrant check before I could go. He was curious about where I was from, where I was going, and where I’d been. I explained that I’d just taken the bar and was travelling around the country visiting friends. I couldn’t immediately remember where, exactly, I’d spent the night, as it was closer to dawn than dusk when I’d finally found a hotel in West Des Moines, Iowa.
I made two mistakes at about this point: first, I should have shut up and I should have asked to leave. In my defense, it was highly unlikely that the officer was not going to search the car or let me leave, given that he had already developed ‘probable cause’ in the dog’s “interest” and had called for backup, but it at least would have given an attorney another chance to argue that the search was illegal.
When the officer finally gave me my written warning, he told me he was going to search the car. I told him I wouldn’t consent to any searches. He seemed surprised and puzzled: “but I have probable cause!” I told him, “Sorry. Law school.”
If you haven’t experienced it, sitting in one of three police cars on the side of a busy interstate while officers dump your dirty laundry on the side of the road for all to see is humiliating. It’s worse when the officers go through more than just your suitcases.
For about an hour, I watched as the officers repeatedly pulled apart the lining of my trunk and opened the hood of my car — particularly unnerving for me, as when I underwent a similar fruitless search in Arizona several years ago, the officers’ search of my engine wound up damaging (if I recall correctly) my water pump. My prior politeness turned to snark when the officer returned to the SUV: “bored yet?” The officer noted that my airbags were “the wrong color” and that there was evidence that my windshield had been replaced at some point (and it had — but the blue tape from the replacement windshield was hidden and I was less than inclined to remove it — plus, it’s a 2003 Jetta, whose aesthetic appearance as probably improved by tape). This, of course, justified a more intensive search. He grabbed tools to begin disassembling my dashboard. Meanwhile, the second officer remained in my passenger seat for an extended time — where my cell phone and laptop were.
When I was finally able to return to my car, it was a mess. My passenger-side airbag compartment was left open, necessitating a stop at a Volkswagen dealership to be assured that it wasn’t dangerous. The contents of everything in my cabin was dumped into the passenger seat, including my now-broken sunglasses.
What bothered me more than the rifling through my possessions was what I discovered when I turned on my phone. I receive text messages from a few Twitter users. One was from a tweet by Popehat, timestamped in the last five or ten minutes of the fruitless, hour-long search. That text was marked read. Meaning: after not finding anything in the trunk, cabin, or engine of my car, the officers heard my cell phone and read through at least some of my text messages. I don’t know whether they read through my email, more personal text messages, or even any of the documents on my laptop, which was adjacent to the phone. Why? Because most courts view cell phones and laptops as ‘containers’, and probable cause for the car means probable cause for everything in it, even if there’s zero chance that contraband itself will be found on the phone.
Worse, the officers did so knowing that I worked for lawyers and a judge. (And, no, a password wouldn’t have helped: the phone was in GPS mode at the time, and wouldn’t have required a password to get into.)
But more than the humiliation of sitting in a police car and having my real-world and digital possessions rifled through, what bothered me most was the insulting mea culpa, post-hoc justification the officer gave me after finding nothing. He didn’t so much as apologize as insult me for being offended by the invasion of privacy. The officer explained that, while the search was fruitless, he had to ease his conscience “in case somebody was trying to smuggle a bomb into Omaha.”
Perhaps it shouldn’t be the implausible threat of a law grad trying to bomb Omaha that worries his conscience, but the ease with which he — and the Omaha police department, which has made zero terrorism arrests since September 11, 2001 — use actual people dying in horrific circumstances to accomplish nothing at all.
From start to finish, the officer’s every act was geared toward building probable cause to search my car. The stop had nothing to do with traffic safety, but an officer’s subjective reasons for stopping a vehicle are irrelevant to whether the initial stop was lawful. Entirely innocent acts in the aggregate formed a sinister criminal profile: that I’d been travelling across the country to see the country became cause for the country’s officers to search, because who does that? Getting a VIN became a free gimme to search the driver’s seat, instead of getting it from the usual place on the dash. To a judge — who is rarely likely to hear about fruitless searches as defendants are usually only brought before him or her as the result of fruitful searches — an officer stating that a dog seems “interested” is enough to satisfy probable cause. Even if, all things considered, the circumstances did not indicate that the searched person was “more likely than not” to possess contraband.
When entirely-innocent factors can be woven by a clever officer to appear suspicious, probable cause becomes less a reasonable measure of suspicion justifying a search and more of a checklist for an officer to duck in order to search. Why? Because of a Phish sticker. When you fit the profile, to a drug-enforcement officer everything becomes probable cause.
Granted, I have it pretty easy: I have a legal education and were I in serious trouble, I could call upon my own knowledge temporarily and my connections in the long-run. But when your own civil liberties are degraded — perhaps trivially, in comparison to more egregious acts by the government — not saying something means you’ve accepted it as normal, and the new normal becomes “reasonable.”