As much as it triggers my gag reflex to say it, I think Justice Sonia Sotomayor is a value-added to the US Supreme Court. While she is a reflexive progressive and shameless shill any abomination the Obama administration may want in the name of expanding the power of the state, she has become a sorta reliable vote in the cause of civil liberties.
In October 2014, she was the lone dissent in Helen v. North Carolina. In this case a motorist was stopped for a driving infraction which did not exist. The Supreme Court ruled that a cop doesn’t have to be right about the law, he just has to think he’s right about the law. So if you get arrested for mopery with the intent to lurk, and in the course of searching you and your car the cops find evidence of an actual crime, it is no-harm-n0-foul as far as the Supreme Court is concerned because the cop thought you’d committed a crime. Even the most pro-cop person in the world can see where this decision is eventually going to lead.
At issue now is another seemingly minor traffic stop case with huge implications:
The case arose in 2012 when a Nebraska police officer, who happened to have his K-9 dog in the car with him, stopped Dennys Rodriguez for swerving once towards the shoulder of the road. After questioning Rodriguez and issuing him a written warning for that traffic infraction, the officer sought permission to walk his drug-sniffing dog around the outside of Rodriguez’s vehicle. When Rodriguez refused to grant permission, the officer made him exit the vehicle and waited for back-up to arrive. Roughly eight minutes later, with a second officer now on the scene for support, the police dog circled the vehicle and gave an “alert” for illegal drugs. A subsequent search turned up a bag of methamphetamine.
Today’s oral argument centered on whether those eight extra minutes “unnecessarily prolonged” the otherwise legal traffic stop and thereby violated Rodriquez’s constitutional rights.
Sotomayor’s question to the government hit the nail on the head. If we allow a person to be detained, in this case after the traffic citation was issued, in order to carry out another more detailed search, what meaning does the Fourth Amendment have.
I have a real fundamental question, because this line drawing is only here because we’ve now created a Fourth Amendment entitlement to search for drugs using dogs, whenever anybody’s stopped. Because that’s what you’re proposing. And is that really what the Fourth Amendment should permit?
…we can’t keep bending the Fourth Amendment to the resources of law enforcement. Particularly when this stop is not—is not incidental to the purpose of the stop. It’s purely to help the police get more criminals, yes. But then the Fourth Amendment becomes a useless piece of paper.
Every session of the court sees new attacks upon the Fourth Amendment by intelligence and law enforcement agencies. The Obama Justice Department lost a pair of cases in June 2014 where traffic stops were used to gain access to cell phones and search the phones for evidence of possible criminal behavior. The leading edge of these attacks on civil liberties are those everyday interactions citizens have with the police. And a battle is shaping up where contact is not even necessary:
Some 50 police agencies including U.S. marshals and the FBI have been using for two years Range-R doppler radar devices that can see 50 feet through walls, including brick and concrete ones, to detect the location of people inside their houses. And in some cases law enforcement officers are using with them without search warrants.
There is a case working its way to the Supreme Court where US marshals used this to look inside a house where they suspected a fugitive was hiding and used the imagery, without telling the judge, to get a search warrant.
While abortion is the big civil rights challenge today, the major challenge to civil liberties is technology in the hands of police forces overseen by compliant courts. For all her faults, and they are legion, Sotomayor is our ally on this issue.