A U.S. district judge in Texas recently lambasted aggressive drug war tactics in a ruling on whether evidence obtained during a random search of a Greyhound bus could be used in federal court.
In 2011 a man named Morris Alexander Wise boarded a bus in Houston en route to Chicago. While the bus was stopped at a gas station in Conroe, Tex., it was boarded by city police officers who were using the gas station as a checkpoint stop to search buses for drugs. The officers didn't have any particular suspicion related to Wise's bus at the time they boarded it.
The officers walked through the bus, asking riders for permission to search their belongings, according to District Judge Lynn N. Hughes's summary. The officers noticed that Wise appeared to be uncomfortable and perhaps feigning sleep, a sign of suspicion.
The officers also saw a black backpack on the luggage rack above Wise, which Wise said he did not own. When nobody else on the bus claimed ownership of the backpack, they took it outside. It was padlocked, so they used bolt cutters to open it. Inside they found 8.8 kilos of cocaine.
They returned to the bus and noticed Wise with a lanyard with multiple keys attached to it. They took the lanyard and found that one of the keys fit the padlock.
Wise was promptly arrested and charged with aggravated possession of a controlled substance, a felony. Local media reports include pictures of a smiling police officer and the drug dog involved in the bust standing over a table with cash and drugs spread across it.
Wise eventually pleaded no contest to possession with intent to distribute. Given his college education, his employment history, and the fact that this was a first offense, the judge sentenced him to 90 days in jail with 10 years of "deferred adjudication," which typically means no additional punishments if the terms of original probation are met.
But the justice system wasn't done with him yet. That bus stop led to his eventual indictment in a federal cocaine distribution investigation in the case that Judge Hughes is now adjudicating. Federal prosecutors wanted to use the evidence obtained in the stop against Wise. But Hughes had different ideas. I'll quote at length from the introduction to Hughes's ruling:
This case illustrates the dilemma of detention and the fiction of freedom. The police in Conroe routinely board intercity buses to survey for law violations. They stop ordinary buses full of ordinary people — just in case. Although passengers and bus drivers may supposedly decline searches, most people would not feel that they were free to go.
The government offers no facts to legitimate Conroe's subjecting people who choose to ride the bus — for economic, environmental, or efficiency reasons — to widesweeping and non-individualized searches that their fellow citizens who travel by cars avoid.
This tactic is one of many used by the government to fight its "war on drugs." During its forty-five years, the principal casualty of this war has been the Constitution. This stop offends the Constitution.
Hughes ruled that the Conroe officers' stop was in effect a type of checkpoint — a forced interaction between the bus driver and passengers and the police. "Checkpoints are a permissible law enforcement tactic but only to investigate specific crimes," Hughes wrote.
The U.S. Supreme Court ruled in 2000 that checkpoint drug searches violate the Fourth Amendment's protections against unreasonable searches and seizures. Therefore, according to Hughes, the Conroe officers' bus stop "offends the Constitution."
"Conroe set up a checkpoint at the gas station and seized every bus that stopped there," Hughes writes. He continues:
It impeded the flow of traffic without a shadow of an articulable hunch. The government says that it "knows" people carry drugs on buses. If the police search 1,ooo bus passengers, someone will likely have drugs. If they search 1,ooo homes in Conroe, they will likely find drugs in at least one of them.
That the police are likely to find something when they search enough people in some ordinary place is exactly why the Constitution prohibits their intrusion into the lives of 999 others. The probability that enough searches will discover contraband is a definition of a suspicionless search. This is being arbitrary with a statistical gloss. This was a gratuitous stop at a checkpoint.
Hughes also excoriated federal authorities for attempting to use the evidence from the illegal stop instead of cracking down on this type of behavior. "The officers' abuse of their authority is bad; however, the federal government's bad judgment in bringing this case is worse. Because it did not tell Conroe that it needs to change its policies or decline to prosecute Conroe's cases for its tactics, it has reinforced the officers' illegal evasions."
Searches like the one in Conroe are common tactics in the war on drugs. The DEA routinely conducts arbitrary searches of Amtrak trains and airports, hoping to find cash or drugs. A USA Today investigation earlier this year found that the DEA maintains a network of informants within the travel industry that it pays to provide information on passengers who meet certain travel and behavioral profiles.
On occasion these searches do turn up contraband or evidence of illicit activity, as in the case of Morris Alexander Wise. But as Hughes points out, arbitrary searches of large number of people in any situation — be it on transit, at work or at home — would likely turn up some evidence of wrongdoing too.
The courts typically don't let authorities search thousands of homes or offices in the hope of finding some otherwise undiscoverable crime. In Hughes's reading of the law, cops shouldn't be allowed to do the same thing to transit passengers.
The federal anti-narcotics apparatus "may need statistics to justify its funding to Congress," Hughes concludes, "but this is a weak and mean way to cater to its bureaucratic imperative."