“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.” -Sun Tzu, The Art of War
In the war against the State, we can not ignore its process. In the common battles, we must, unfortunately, play by their rules. They hold a monopoly on justice and claim that anyone who does not take part in or accept the system, is still accountable to it. In Evenwel v. Abbott, U.S. Supreme Court Justice Breyer said (in reference to district apportionment),
“And those words say if you look to other parts of the Constitution, such as those, or Republican Form of Government, that what we actually want is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress. And if you take that as a constitutional principle, that shows an objective of some of the clauses of the Constitution.”
If we can not win the daily battles against tyranny, the war is lost. 97% of the legal cases the state brings against people are never fought or argued. Police officers write small meaningless tickets with the confidence that they won’t have to answer to any potential misconduct or ignorance of the law. The more people fight in court, the less incentive there will be for cities to use simple ordinances, that protect no one, as revenue collection. Turn that revenue collection into resources spent in court and you will show them a reason for discretion. Reason to back away from the parking tickets on empty streets, jail time for rainwater collection, selling raw milk, selling lemonade, taking your shirt off, giving food to the homeless, singing, or dancing. You’ll show them a reason to encourage the officers who proclaim to protect people to protect them from actual danger.
Fighting that battle isn’t easy. I fought a case in which a superior officer called the ticket his officer wrote erroneously. He opened an investigation on the officer who issued it. The court recognized that the statute did not cover the accusation put against me. I lost. The state, it seems, favors itself. That doesn’t mean all battles are losses, and that doesn’t mean it isn’t worth fighting. All wars are fought on multiple fronts. We have hearts and minds to win, politics to penetrate and influence, legal battles to challenge and overturn. Any meaningless infighting aside, we know what the goal is and we know who our enemy is. Fighting the enemy starts with knowing them and how they operate.
The following is the summary of two very recent Supreme Court cases. Birchfield v. North Dakota was heard in April 2016 and Utah v. Strieff was heard in February 2016. The first sets an important limit on fourth amendment searches. The second gives police a dangerous amount of power to harass and “legally” conduct illegal searches in high crime areas. The purpose of going over them here is to understand the context of their decisions, the dangers they present to freedom, and hopefully expose avenues to fight or help others fight the precedent they set.
Birchfield v. North Dakota Oral Arguments
In Birchfield v. North Dakota, three men in three different cases refused to submit to a blood test for blood alcohol level. The state charged all three with a criminal offense for asserting their fourth amendment right. The question here is whether it is a criminal offense, not whether it is a violation. The truth of the matter is that the federal government has no jurisdiction to protect your right to free travel, it’s not in the constitution. At best, it can stop states from taxing you for, or preventing you from leaving a state to go to another. But there is no constitutional right to travel within a state or on its roads. For this reason, both the court and the Petitioner (Birchfield) recognized that the state can take away a person’s driver’s license for a refusal to submit to a blood test. That admission alone brings up a lot of issues. Primarily, is getting a driver's license a voluntary agreement to the rules of the road, and consent to any search given reasonable suspicion?
“You know, that especially in North Dakota and sparsely populated States, you have to drive in order to — so we know that consent is — is fictional in that sense. But suppose that it was voluntary and that it was explained and so forth and the — and the — and the drivers sign it. It still seems to me you’d — you’d have an argument that it’s — it’s coerced.” -Justice Kennedy
If the state has a monopoly on licensing for the use of roads, and if they can refuse to license someone, or take a license away without reason (which they can do), then why do they need consent to search someone driving on the roads they have full control over? The lack of a right to travel on a federal level has left a large and dangerous power gap between the state and the people.
“Assume a State can condition the — the ability to drive on a State’s roads on consenting to a blood-alcohol test, perhaps under certain circumstances. Let’s say this is done in writing at the time when the person applies for the license, so it’s not — it’s not just implied. Why does that — what is different about that situation from a number of other situations that I can think of? For example, conditioning a — a license to operate an interstate passenger train on submitting to a blood-alcohol test in the event of reasonable suspicion. The person is operating the — the train under the influence of — of alcohol, or the same thing with someone who is operating aircraft. Or suppose there were a law that said that if you want to enter certain government buildings, such as this building, the — the condition of entering is consenting to a search, and you have to sign something, you have to go through the magnetometer. And then if a person got through that, and there was reasonable suspicion that the person had smuggled in some kind of a weapon, the person would be subjected to a search. What would be the difference between that situation and this situation?” -Justice Alito
It’s hard to deny the logic. The state has already secured the power to submit people to searches in many areas. In the case of blood alcohol tests, evidence dissipates over time. A refusal could mean time for a suspect to sober up. The Chimel Rule allows for warrantless searches of an arrested person for safety, escape prevention, and destruction of evidence. While this may only apply to arrested persons, an officer may conduct a field sobriety test based on reasonable suspicion in order to obtain probable cause for an arrest. And then conduct a warrantless search for BAC (Blood Alcohol Content). In any case, the state holds the power.
“Mr. Chief Justice, and may it please the Court: The North Dakota statute strikes a bargain with individuals who wish to use the State’s public roads. Conditioning their use thereon, on consent to a blood-alcohol test, if arrested for drunk driving, the Court has held that this is a valid bargain, and that States may enforce it with the imposition of significant consequences, including license revocation and the use of test refusal as evidence in criminal proceedings.” -Thomas R. McCarthy, North Dakota
“What about another bargain, if people find that texting while driving is becoming an increasing problem, and so when you get a license, you’re — you give implied consent for the officer to look at the texts or whatever they can look at on your cell phone to make sure, you know, a minute ago you were texting somebody while driving? Is — would that be acceptable under your rationale?” -Justice Roberts
As North Dakota asks for more power by a decision of the Supreme Court, the potential for a slippery slope becomes clear. If getting a license is implied consent to a search, isn’t it implied in all cases, not just DUI suspicions? When the Respondent (North Dakota) claimed that getting a warrant makes their job more difficult. Justice Sotomayor snapped back by telling them to get a warrant anyway. On the argument that magistrates aren’t always available at odd hours, she responded:
“So that excuses you from a constitutional requirement? We’re now going to bend the Fourth Amendment, which I always thought started on the presumption that we favor warrants, we don’t disfavor them. But since many jurisdictions seem to manage it, we give a pass to North Dakota because it doesn’t want to?” -Justice Sotomayor
The point is reinforced, if the state already has the power to suspend someone’s license based only on or less than suspicion, why then do they need to conduct any further search? Justice Sotomayor suggested that there is another, underlying goal here for the state. And that the argument doesn’t make sense. Indeed, it is likely that North Dakota’s representatives believe they should be able to search anyone at any time without jumping through any hoops to make sure there is no misconduct.
In a 7-1 decision, the Supreme Court decided that in order to do a blood test for BAC, a warrant is required. However, because of the perceived difference in privacy violations, they reaffirmed that a warrant is not required to do a breathalyzer test, only reasonable suspicion.
Thanks to the liberal interpretations of the interstate commerce clause and the lack of a right to free travel, the government holds an uneven amount of power over the people on the roads. It is through transportation that they have their entry into people’s lives. It is their ticket to harass and collect revenue on victimless crimes. While the government has managed to regulate our personal lives, what we do in our own homes, and how we trade with others, nowhere are the violations of natural human rights more visible. But by understanding the state’s limits on what they can and can’t do, according to their own monopolized justice system, we can better understand where to take the fight.
Utah v. Strieff Oral Arguments
In Utah v. Strieff, a police officer doing a sting on a suspected drug house stopped Strieff who was coming out of the house and discovered an outstanding warrant during questioning. After the arrest for that warrant, the officer found meth on Strieff. The defense argues that the detainment was illegal, to begin with. While the arrest may be legal, the evidence recovered during the search is not admissible because the officer obtained it under illegal means. If he found evidence by illegal means, it falls under the exclusionary rule and it is not admissible in court. The issue is, if an illegal detainment, by pure chance, turns up a warrant, does that cancel out the exclusionary rule?
In the case of Ferguson, Utah, the city was openly issuing arrest warrants for minor violations to the point that 80% of the population had outstanding warrants. (Really, 80%.) The city was then using those warrants as an excuse to investigate anyone with a minor suspicion. Just to justify searches. The state legal representative fully recognized this and did not argue against it.
Joan Watt, the representative for Strieff, argued that allowing officers to stop people, solely to check for warrants when they have no suspicion, would destroy the fourth amendment. Both sides agree on the legality of a Terry Stop, which says police may stop people and frisk them based on reasonable and articulable suspicion. What’s at issue is if they can stop people without that suspicion, just so they can check for a warrant.
Justice Roberts brought up a comparison to traffic stops. Officers usually run people’s plates before approaching the vehicle as a matter of safety. He asks, how is that, on a legal basis, any different? Is there a difference between checking warrants for safety and checking warrants for investigation? However, it’s made clear that police can not pull people over without reasonable suspicion, to begin with. This is why in New Hampshire at a traffic stop, passengers are not considered detained, but the driver is.
Justice Alito showed resistance to the case by clarifying that the arrest was lawful because of an outstanding warrant. And that the search was lawful due to the arrest. But the evidence found during that search was the fruit of unlawful detainment. Even if the officer has reason to believe Strieff was just exiting a drug house, proximity to a suspicious place does not justify a lawful Terry Stop according to Ybarra v. Illinois.
A 5-3 decision ruled that if an unlawful detainment results in a lawful arrest based on a warrant unrelated to the situation, any evidence found is admissible in court. Justice Sotomayor dissented by writing that this case allows police officers to take advantage of their own unconstitutional conduct. In areas that have high rates of outstanding warrants (such as 80%), this ruling incentivizes officers to conduct unlawful searches (for which they will most likely not be challenged) in the hopes of finding a warrant. A direct contradiction of the purpose of the fourth amendment. She wrote that the ruling creates a “second-class” of citizens who are now subject to police misconduct based on whims and guesses. People in cities like Ferguson, Utah, who we know the city subjected to unjustified warrants, are now vulnerable to harassment and searches at any time without any suspicion that they’ve committed a crime.
In this second case, Justice Sotomayor is rightfully recognizing that government power is rarely challenged by those most subject to it. If officers have the power to stop people without suspicion, based on the gamble that there is an outstanding warrant, they will use it. It is important to resist power on the street by asserting your rights and within the courts by defending your own peaceful actions. Some people have found the idea of clogging the courts with victimless cases to be reprehensible. But if people challenge tickets more often, they’ll be less likely to receive them for transient reasons, and officers will more likely use their own discretion and judgment to seek the safety of the community rather than revenue collection.
No matter your political beliefs, blindly giving into every accusation the state throws at you gives them power you don’t want to give them. If you stop fighting, the government will keep grabbing power. Something simple you can do to help yourself, the people who have been arrested for selling products, feeding those in need, singing, and dancing. For the people who have serious victim-based cases that do not get speedy trials because of a broken system with backward priorities. One simple thing you can do to help shift this balance of power back in favor of the people is to always defend yourself when you were not in any moral wrong in any peaceful manner possible. Show the courts you won’t stand for a lack of officer discretion and obvious revenue collection tactics. Keep yourself educated, and don’t take the plea.