Freedom Means Being Left Alone

“[T]he right to be let alone — the most comprehensive of rights, and the right most valued by civilized [people].”

–Louis Brandeis, Olmstead v. United States

When can police pat you down? Poke behind your ceiling tiles? Peek in your bedroom windows?

The Constitutional Right to Be Left Alone:

Your right to be left alone (“let alone” in Justice Brandeis’s 1928 dissenting opinion) is being eroded by routine use of warrantless, non-consensual searches. Law enforcement use “searches incident to arrest,” “exigent circumstances,” or “plain view” excuses routinely, and with increasing frequency, as pretexts for executing searches without bothering to get a warrant as required by both the Minnesota and United States Constitutions.

You need to know your rights in order to protect them.

How Much Freedom Can You Expect?

The right to be free from government intrusion is most closely attached to your body and extends out from there to your home and your car or your stuff, in less-protected spheres depending on how far the object of the search is from your body and how intrusive the search is. For instance, if you’re out in public spaces or using public roads-putting yourself out to be seen-you have less right to privacy than you have in your home.

“Reasonableness” is supposed to be the touchstone in analyzing whether one of these excuses for a warrantless search applies.

When can the police search inside your body? According to a U.S. Supreme Court decision last year, which I briefed on behalf of a coalition of Minnesota lawyers, the police can search your breath for alcohol if you’re driving (because that search is not very intrusive), but they need a warrant to draw and search your blood. I disagree with this expansion of warrantless searches-this intrusion into your right to be left alone-but it is “reasonable.”

A decision from the Minnesota Court of Appeals last month held that it was reasonable for police to order a doctor to sedate someone to insert a scope and forceps to extract a small amount of drugs for personal use from his rectum. That decision strains anyone’s definition of “reasonable.”

I don’t think it was reasonable when a rural sheriff, knowing my client had a history of drug use, searched his car because the sheriff claimed to see a single marijuana seed in “plain view” on the passenger seat (he found no marijuana and the sheriff never produced the seed or a photograph of the seed that “justified” the search).

DWI Roadblocks:

Applying these principles, the US and Minnesota Supreme Courts have reached opposite conclusions on the reasonableness of DWI roadblocks.

The US Supreme Court has held that DWI roadblocks are constitutional because protecting the public from drunk drivers outweighs the minimal intrusion into the individual’s right to be left alone.

The Minnesota Supreme Court has held the opposite: that to subject large numbers of people to searches without suspicion that they have done anything wrong is too great an intrusion into the people’s right to be left alone. The Minnesota Supreme Court held that, “the reasonableness of the use of a temporary roadblock to stop a large number of drivers in the hope of discovering evidence of alcohol-impaired driving by some of them” violates the Minnesota Constitution to be free from unreasonable searches without individualized suspicion of wrongdoing. Police can’t go car-to-car looking for drunk drivers any more than they can go house-to-house emptying drawers and overturning mattresses searching for drugs.

While I was writing this post the U. S. Supreme Court issued the Carpenter opinion. Carpenter held that police cannot access cell phone location data without a warrant and that the federal law authorizing them to do so compromised your right to be left alone too broadly even though, arguably, cell phone users put that data in the public sphere to be searched. On balance, that law, the Stored Communications Act, revealed too much private information on too tenuous a thread of individual wrongdoing. If they have the goods, evidence of criminality, police can still get the information with a warrant.

What it Means to You:

Here’s one more example: your college friend, Doug, and his wife, Diane, are flying from Dallas to Toronto and have a layover in Minneapolis. There’s enough time for you to go out for dinner, but Diane wants to stay at the airport.

Doug is carrying his wife’s Imitrex pills (a common migraine medication) in a baggie in his pocket for her because . . . you know, women’s clothes don’t have pockets!

Even without shining flashlights into your car at a DWI roadblock, police can pull someone over for any traffic violation: as the Minnesota Supreme Court held in 1997, “very fewer drivers can traverse any appreciable distance without violating some traffic regulation.”

If you get pulled over for a turn signal violation, speeding, dirty license plate, or any other reason, and the baggie is poking out of Doug’s pocket, can the police ask Doug to step out? Pat him down? Search the car? Under Minnesota law, Doug is looking at a felony.

In defending you, I look at whether the stop was constitutional to begin with, whether the police had a right to look in Doug’s pocket, and then in the car.

The government, in its role policing wrongdoing and protecting citizens, wants to search everywhere. My job is to defend your right to be left alone.

If you have questions about a police search -or other government search-call me.