Every one of us in the United States has legal rights that are guaranteed by the U.S. Constitution, and every person in the United States should know what those legal rights are. However, in recent years here in the land of the free, the police are increasingly inserting themselves – illegally and unconstitutionally – into our public and private lives. Even drinking a cup of coffee can bring the government down on you. Ask Lindsey Krieger, a young Minnesota woman. She’s one of the millions of us who like to drink a cup of coffee on the morning commute. When a cop in St. Paul pulled her over in traffic back in October, Ms. Krieger – like the rest of us – had no idea that drinking a cup of coffee could be considered reasonable cause to trigger a traffic stop. After playing a few rounds of “Why Do You Think I Stopped You?” the officer finally informed Ms. Krieger that drinking coffee while driving is against the law.

Of course, Ms. Krieger wasn’t ticketed for drinking coffee while driving. Everyone knows that’s not against the law. She was cited instead for not wearing her safety belt. Ms. Krieger says that she unbuckled the belt after she was stopped so that she could reach more easily for her license and registration. The officer’s supervisor, St. Paul Police Sgt. Mike Ernster, did not criticize his subordinate’s unconstitutional and frankly stupid behavior. He fully supported the officer and told Minnesota reporters that Ms. Krieger might have been guilty of “inattentive” driving. However, at least one observer offered some common sense. Joe Cummings of the Minnesotans for Safe Driving called the unfortunate incident an overreach by the police, and he pointed out that cup holders are standard equipment in U.S.-made automobiles, which means that drinking non-alcoholic beverages while driving is an accepted and normal social practice – not a crime.

A CONSTANT INVASION

It doesn’t really matter what your politics are. All factions along the political spectrum agree that federal, state, and local governments, and especially law enforcement agencies, step over the line far too frequently. The constant invasion of our lives by the police – and by the rest of the government – is a sad reality that more and more of us are forced to confront on almost a daily basis. Do police officers really find it necessary to interrupt our lives with juvenile accusations that only waste your time and your tax dollars? Seattle offers a prime example of governmental pettiness. If a corn cob or a pizza crust accidently falls into your recycling bin in Seattle, and city employees find it, you can be fined up to $50. Here in Colorado, we’ve also endured our share of petty government regulations. Until 2009, you couldn’t even collect rainwater in a bucket on your own property – it legally belonged to the state, every last drop.

Ostensibly, the police still must have a “reasonable cause” to stop you in traffic. In other words, the officer must spot an actual violation, or you must match a description of someone who’s wanted for a crime. During a traffic stop, it’s legal for the police officers to search anything that’s in plain view. But what about a cell phone that’s in plain view, or a laptop that’s open to your Facebook page or your bank account? Along with the coffee and the rainwater, these may seem like trivial examples, but they point to a quite serious reality that’s analogous to “mission creep.” If you’ve watched the United States conduct foreign policy over the last several decades, you know about mission creep. At first, the phrase referred exclusively to military operations where the aim – and the number of boots on the ground needed to accomplish it – keeps expanding. Send in some troops to “liberate” some people, and you end up rebuilding a nation, staying there a decade, and spending a few trillion dollars.

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WHAT’S REALLY LEFT BEHIND

The problem is that mission creep isn’t the monopoly of the military. Police departments are vulnerable to mission creep too, and in too many instances, it’s becoming a chilling reality. Whether the cops are surrounding the home of a suspected white supremacist on Ruby Ridge, choking an innocent black man to death on a New York sidewalk, or harassing a young woman for drinking coffee in St. Paul, they’re acting in ways that precisely define what mission creep is. What’s typically left behind when police agencies expand their “mission” is a basic respect for our legal and constitutional rights.

Historically, mission creep started in police departments with SWAT teams and the “war” on drugs in the 1970s. Police semi-militarization and mission creep continue today. In 2014, outrage at police excesses emerged on the streets in Baltimore and in Ferguson, Missouri, as well as across the nation’s newspapers and televisions. Also in 2014 – in the case of Navarette v. California – the United States Supreme Court decided that anonymous tips accusing drivers of reckless driving are enough to justify searching their vehicles. Justice Antonin Scalia wrote in his dissent to the Navarette decision that his fellow justices had made a “freedom-destroying” decision. Other Supreme Court rulings since the 1970s have consistently eroded Fourth Amendment rights. Law enforcement agencies around the country now routinely conduct legally questionable searches, and anybody with a grudge against you can simply telephone the police and cause you a world of trouble by telling them that you’re driving recklessly, neglecting your children, or violating some other law. To search your vehicle legally during a traffic stop, one of these conditions must apply:

  • The police officer has probable cause.
  • There is evidence of a crime in plain view.
  • The police officer has obtained your permission to conduct the search.
  • The police officer believes his or her life may be at risk.

TRAFFIC STOPS AND HOME INVASIONS

If you are stopped for a routine traffic violation that should not normally lead to an arrest, the police officer might request permission to conduct a search of your vehicle. You should politely but quite firmly deny that permission. The results of any search that you permit will be admissible in court. Of course, if you are stopped and an officer sees undeniable evidence of a crime – such as weapons, drugs, or open alcohol – in plain view, you and your car can be legally, thoroughly searched, and you’ll very probably be arrested on the spot – legally.

Since cars were invented there’s been controversy regarding traffic stops by the police, but your home is another matter. The Constitution is clear – law enforcement officers may not enter your home without a warrant or without a reasonable belief that a crime is in progress. Yet in 2011, police seized a family’s home without warrants in Henderson, Nevada. A Henderson police officer asked Anthony Mitchell to allow officers to use his home to gain a “tactical advantage” over a neighbor who had barricaded himself, but Mr. Mitchell rejected the request. That is his right under the law. Mr. Mitchell says the police returned, busted through his front door without warrants or permission, and arrested him for “obstructing an officer.” Five years later, Mr. Mitchell and his family are still having no luck seeking justice from the courts.

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THE GREATER CONCERN IS OUR RIGHTS

There’s simply not enough space here to list the many recent incidents of overreaching by police departments, but here’s a sample of what’s happening every day in our nation. Two teens in Hardeman County, Tennessee spent 48 hours in jail in November – for wearing baggy pants. Also in November, a TSA (Transportation Security Administration) agent at the Fort Lauderdale International Airport confiscated a 5-year-old’s “Buzz Lightyear” toy purchased from Disneyworld. Deemed a “replica firearm” by the TSA, after inspecting the toy, the agent didn’t return it. He threw it in the trash and made the child cry. A 39-year-old man was arrested in Mecosta County, Michigan, in November for handing out flyers in front of the county courthouse. They weren’t obscene, either. The flyers explained the legal rights of jurors. Keith Woods now faces six years in prison for “obstruction of justice.” And earlier in 2015, a Miami police officer named Paul Gourrier handcuffed a 5-year-old – who had been fighting with another youngster over a toy – to show the child “what can happen.”

A greater concern, of course, is what can happen when law enforcement officers no longer follow the law. James Madison, the fourth president and an author of the Constitution, once said, “I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.” That’s the reality that we’ve been facing since the 1970s. It’s not an abrupt and sudden rejection of our rights. Instead, we’re slowly and incrementally losing those rights, and many of us don’t even realize how far the government has encroached on our freedoms.

As a consequence of Navarette v. California, you are now much more likely to be stopped and arrested for a crime in Colorado. If that happens, let an experienced Denver criminal defense attorney help. Even a bogus tip now gives the police sufficient reason – “reasonable cause” – to stop you. If you are charged with a felony or with a misdemeanor in the Denver area, now more than ever, you’ll need high-quality legal help, so you’ll need to contact a Denver criminal defense attorney promptly.

By: Dan Murphy

Denver criminal defense lawyer Daniel M. Murphy provides clients in the Denver area with aggressive and sympathetic legal representation. He graduated from the University of Denver Law School in 1994 and worked as a public defender before starting his own practice in 1996. He has defended clients accused of the most difficult criminal and alcohol-related charges. He also serves as a Moot Court Judge for Denver-area law students who rely on his mentorship.