Court Upholds Warrantless Search Based on Torn Plastic Bag and a Reclined Seat

It’s well known that the drug war is one of the main sources of our country’s overpopulated prisons. However, there is another negative aspect of the drug war that is often not addressed.

Drug laws allow police to routinely conduct searches based on expansive interpretations of probable cause. In turn, any evidence of a crime unrelated to drugs is admissible in court, as long as it was discovered within the “plain view” of the officer.

Unfortunately, the standard for probable cause seemingly continues to diminish, and the drug war indirectly provides law enforcement with a blanket justification for violating the 4th Amendment.

A 6-to-1-ruling this month by the Kansas Supreme Court, State v. Howard, highlighted this issue.

The court upheld Cameron Howard’s conviction from 2013 for the possession of a firearm by a felon. Howard was driving in a Kansas City suburb in 2011, when he was pulled over after he drove through a gas station to avoid a traffic light. Soon after, Howard was placed under arrest due to an outstanding arrest warrant.

The officer found a gun under a floor mat, but his search was based upon two unusual factors for probable cause. The passenger, a pregnant woman, reclined her seat after the officer signaled for them to pull over. Also, there was a plastic bag in which the corner was torn off. This officer later explained that illegal drugs are sometimes packaged from tearing off the corner of a plastic bag.

A Legal Search?

Howard’s attorneys contested that the officer didn’t have probable cause to make a warrantless search. As a matter of fact, there was even controversy about where the gun was discovered because the officer contradicted himself with his testimony. He claimed that the gun was beneath the driver’s side rear floor mat. He also said that it was under the front passenger side floor mat.

On the other hand, Howard admitted that there had been marijuana in the torn plastic bag. Consequently, this is the type of case that most “law and order” conservatives cast aside with a belief that the ends justify the means. However, the multiple constitutional and civil rights issues associated with State v. Howard deserve more attention.

First of all, Howard purchased and owned the gun legally. He was convicted in Missouri in 2006 for a felony burglary charge. However, his convicted felon status was reversed by the state after successfully completing a diversion program. That’s why he passed a federal background check when he made the purchase. Regardless, Kansas state law still recognizes him as a convicted felon.

Secondly, this is the kind of case that establishes a dangerous precedent. In this instance, the officer’s instincts, in regard to the plastic bag, were accurate. However, this precedent will certainly be abused in the future, thus adding to the continual degradation of our constitutional rights. Arguably, any object or behavior can be listed to justify a warrantless search.

That may sound far-fetched, but it’s the truth.

For example, the Rutherford Institute recently published an article criticizing the State v. Howard ruling. It mentioned numerous “suspicious” behaviors that courts have upheld for warrantless searches, including having acne scars, driving with stiff upright posture, air fresheners hanging from the rearview mirror, among many more.

Clearly, these dubious searches add to our mass incarceration problem by adding more drug arrests and unrelated criminal charges.

However, the deterioration of the standard of probable cause also affects civil asset forfeiture. After all, probable cause is the standard necessary for police to seize your property with civil asset forfeiture.

And that’s no minor issue. There was $4.5 billion seized through civil asset forfeiture in 2014, which was more than collectively burglarized in the same year ($3.9 billion) by all of America’s actual criminals. Keep that in mind the next time that you travel with a plastic bag or air freshener in the car.

Unfortunately, there will be no calls for reform from the federal government.

We have a “law and order” president who is unfamiliar with civil asset forfeiture. Nevertheless, he joked about ruining the career of an official who talked about reforming those laws.

All in all, it is a constant battle to uphold our Constitutional rights.

Brian Saady is the author of the upcoming three-book series, Rackets, which is about the legalization of drugs & gambling, and the decriminalization of prostitution. www.briansaady.com. You can follow him on Twitter @briansaady.

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