By Vin Suprynowicz
The Fourth Amendment guarantees Americans shall remain "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." If government agents want the kind of written warrant required to conduct such a search, they must show a judge "probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
According to U.S. Magistrate Judge Robert Johnston, those clear restrictions were not observed when three law enforcement officers watched one Larry Sparks board a Greyhound bus in Las Vegas, Nevada on a February evening in 1998.
Mr. Sparks, a Californian then in the process of moving to the Chicago area, moved down the aisle past the law enforcement officers already seated, and took a seat in the last row. Las Vegas police Det. John Zidzik approached the 23-year-old man and asked if he could look in Mr. Sparks' book bag. The two men disagree on how Mr. Sparks responded, but the detective ended up searching the bag, finding crack cocaine, and arresting Mr. Sparks, who was subsequently indicted by a federal grand jury on a charge of possessing with intent to distribute.
The magistrate writes "Zidzik testified that he never informed Sparks or the other passengers of the right to refuse to speak to the officers or to refuse consent to searches of their persons or baggage."
Mr. Sparks had just seen the officers demonstrate their power by taking another passenger off the bus in handcuffs, the magistrate noted. Since Mr. Sparks had no prior felony convictions, the officers had no probable cause to approach and question him. Since Det. Zidzik was filling up the only aisle -- an aisle of only 30 inches width -- as he loomed over his suspect, and since Mr. Sparks would have had to physically confront all three officers in order to disembark the bus, the federal magistrate further found "A reasonable person in Sparks' position would not have felt free to leave or terminate the encounter and go about his business."
In the end, Judge Johnston ruled the search was not permissible, and the evidence discovered through this search could not be admitted at trial. Charges were dismissed against Larry Sparks, who walked free on May 12 after 15 months in jail.
Despite the illegality of the whole procedure, his 12 ounces of cocaine, worth thousands of dollars, were not returned to him (nor even sold to legal dental or opthalmic practitioners with the proceeds being returned.) Nor has Mr. Sparks been offered any compensation for his lost year. Some "justice."
Law-enforcement officers have been conducting such interrogations at local bus stations and airports for some time, according to Sparks' attorney, Donald Green, though he has seen arrests resulting from the tactic increase in the past two to three years.
In such cases, police always contend the arrestee has given "voluntary consent" for the search. But what sane person in possession of contraband would invite officers to make such a search if he understood he was truly free to refuse? Are we really to believe police never say, "Well, we can just wait here for the drug dogs, but it's going to go better for you if you cooperate right now"?
American audiences used to hiss when Gestapo men in the movies asked travelers, "Papers, please?" But today it's our cops who never let on that the suspect has a right to refuse and walk away, according to Las Vegas Assistant Federal Public Defender Deborah Trevino, who labels such interrogations "Gestapo techniques."
"Yeah, you catch more people, but you also catch more people if you break into their houses, which is prohibited by the Fourth Amendment."
The finding of Judge Johnston is correct. Citizens are clearly being targeted based on race or low economic status, and intimidated into submitting to searches which everyone knows are unconstitutional, under the absurd contention that a nervous citizen faced with an armed officer demanding in his command voice "Would you open the bag please," should be expected to cutely reply, "Well, since that was really a question rather than an order, no, officer, I'd just as soon not, and what's more I'd like you to move your big butt out of my way."
If we are to remain a free country, Americans must remain at liberty to go about their business (providing they are not obviously in the process of committing violent felonies) without being intimidated into submitting to unconstitutional stops and searches. All these cases should be thrown out, and the arresting officers or their departments made to pay full compensation for lost time and property.
If banning this tactic makes it slightly harder to pursue the "War on Drugs," well, 1) that "War" is long since lost, and 2) tough.
Vin Suprynowicz is the assistant editorial page editor of the Las Vegas Review-Journal. His new book, "Send in the Waco Killers: Essays on the Freedom Movement, 1993-1998," is available at $21.95 plus $3 shipping through Mountain Media, P.O. Box 271122, Las Vegas, Nev. 89127. The book may also be ordered via web site http://www.thespiritof76.com/wacokillers.html, or at 1-800-244-2224.
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