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A crook’s life is so difficult   no comments

This editorial originally appeared on in August 2006

Week before last, the United States Supreme Court handed down a decision in the case of Samson v. California that didn’t get anywhere near the amount of press that it should have.  If the courts and legislatures of other states follow the lead on this, law enforcement will have been given an incredibly powerful tool in suppressing crime.

One of the unique things about law enforcement is that the most mundane incident can turn into a history-making event.  In this case, on a September day in 2002, Officer Alex Rohleder of the San Bruno (CA) Police Department, located a few miles south of San Francisco, saw Donald Samson walking down the street, accompanied by a woman and a child.  Officer Rohleder was of the belief that Samson, who was on parole after serving time for being a felon in possession of a firearm, had an active arrest warrant for violating the conditions of his parole.  Officer Rohleder stopped Samson and asked him if he had a warrant, and Samson said that he “was in good standing with his parole agent.”  Having had the experience that felons are not always completely forthcoming in their communications, the officer ran a wants check by radio.  The response was that there was no warrant for Samson.  Even so, as long as everybody was all dressed up and nowhere to be, Officer Rohleder decided to search Samson’s person, and recovered a bindle of methamphetamine.  Oops.  Say good night, Mr. Samson.  Meth is illegal, even in the People’s Democratic Republic of California.

Now, some of you might think that the crank was going to be suppressed for lack of probable cause for the search.  People under supervision in California frequently have a Fourth Amendment waiver as one of their conditions of parole or probation.  Simply put, this allows any peace officer to search the person’s car, home, or person at any time, for any reason, so long as the search is not “arbitrary, capricious, or harassing.”  Unfortunately, the practice was not always so simple.  Various courts and agencies had determined that these searches had to be justified by reasonable suspicion or probable cause, or conducted only by the person’s parole or probation officer, or only allowed when Mars was in conjunction with Jupiter in months containing an “R.”.  Thus, depending on whom you asked, Officer Rohleder’s search could be construed as a little “out there,” legally speaking.

As you might expect, Mr. Samson tried to get the meth suppressed at trial.  The trial court was unpersuaded, and invited Samson to seven years in the company of other differently ethical men.  The California Court of Appeals upheld the trial court’s finding.  The Supremes thought the case was edgy enough for them to examine, and then affirmed the two lower courts.  Thankfully, we managed to skip the 9th Circuit on this one.  Otherwise, Samson would probably be living in Officer Rohleder’s house by now.

“Hi, Mr. Samson.  We have good news and bad news.  The bad news is that the United States Supreme Court thinks your legal strategy is dog squat.  The good news is that you’ve only got three years to go!

The immediate effect of this ruling will be very uneven in other states.  Fourth Amendment waivers are relatively common conditions of probation and parole, but the conditions under which the waivers can be enforced vary greatly.  As with the different applications in California, some places require than an officer have something more than good old JDLR (Just Don’t Look Right) to conduct a search.  Others say that the waiver is enforceable only by the probation or parole officer, and they don’t always go along with the police department’s whims.  Some P&P officers have to get court or supervisory permission before they can conduct a search.  Some treat the waiver as if it wasn’t there at all, enforcing it only under conditions that would justify a regular search warrant.  But the ruling does supply solid ground on which to mount a policy change that will permit law enforcement to use this wonderful tool.

Civil liberties advocates are disturbed by this, or course.  Samson gives the police even more power than before to intrude into people’s private lives and subject them to all sorts of indignities.  What they won’t mention is that the ruling affects only one portion of the citizenry: criminals.  In this case, we’re not talking about people that are only suspected or accused of committing crimes, but rather those that have been tried, convicted, sentenced, and in some cases, released from confinement.  A 2002 study by the Bureau of Justice Statistics indicates that 44% of inmates released from prison will be rearrested within a year, 67% within three years.  For some reason, car thieves appear to be the most resistant to rehabilitation, with almost 80% returning to prison.

For most of us, the strategy for staying out of prison is remarkably straightforward: don’t break the law. Don’t use meth, don’t steal cars, don’t rape women, don’t play with guns, don’t go into people’s houses when they’re not home.  Personally, I can go quite a long while and not have any of these activities occur to me as being a way to pass the time.  But this faction of the population views these things as part of the normal path of their lives, and the rest of us are just supposed to get over it.  Knowing that they can be stopped and searched by any cop that happens to pass by is going to put a nasty hitch in their gitalong.  And that is just too damn bad.

Leaving these people in prison would be very effective in preventing them from victimizing more honest citizens, but that is a horribly expensive solution.  So, we tell them that they can walk around pretty much anywhere they want, work at a job, sleep with their significant other, and see their children regularly (e.g., do pretty much what the rest of us do every day), as long as they don’t commit more crimes.  And we will determine if they are committing more crimes by occasionally searching them.  If I had to decide between prison and getting searched now and again while on the outside, it wouldn’t take me long to make up my mind.  And I may never understand why this concept is so difficult for others.

Written by Tim Dees on August 18th, 2007

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