The recent iPhone encryption battle has left privacy rights proponents nationwide up in arms over the prospect of the government freely extracting citizens' cell phone data. The debate pits national security interests against the privacy rights of millions of Apple, Inc. customers.
As a Public Defender in Baltimore City, it struck me that those who side with Apple should be equally alarmed by the numerous incidents of questionable police and citizen contacts regularly occurring on the streets of our country that disproportionately affect African-Americans. Similar privacy rights are at issue in both situations, yet only the iPhone standoff gets media attention. I learn of shady police encounters from my clients far too often, even after last year's uprising. People should wake up to the realities surrounding policing in America as well as the relationship that our judicial system plays in offering checks and balances on law enforcement through the protection of personal rights. Despite the high profile deaths of citizens involved in police interactions ranging from Eric Garner to Tyrone West and Freddie Gray, or the recent accosting of uniformed, on-duty mailman Glen Grays in New York City, we still have not reached the point where our nation as a whole is invested in this issue.
For example, the current Supreme Court case of Utah v. Strieff, a potentially precedent-setting matter in terms of the police's ability to stop and search someone, has gone largely unnoticed as we await a decision. Strieff deals with a 2006 encounter between Edward Strieff and police in Salt Lake City, Utah. The police were monitoring a house for suspected drug activity and noted people coming and going from the location, among them Mr. Strieff. Although the investigating detective observed nothing illegal, he stopped Mr. Strieff to check his ID. After determining that Mr. Strieff had an open warrant, the detective put him under arrest and searched him. The detective recovered a small amount of methamphetamine and paraphernalia. Mr. Strieff was charged with illegal possession of drugs.
Mr. Strieff challenged the police's actions as violations of his 4th Amendment rights to be free from unreasonable searches and seizures. He argued that he was initially stopped illegally for no "articulable" reason, and his prolonged detention by the police led to his search. The rights discussed in Strieff should hit home for privacy proponents—stops and searches without just cause. The premise of a 4th Amendment court challenge requires a judge to focus on the preservation of constitutional rights vs. governmental interests, rather than keying in on the potential impact of the ruling at hand, which may exclude evidence (like drugs) often determinative of the outcome of the case. The Utah trial court judge found the stop to be illegal, but still allowed the evidence to be used against Strieff. Thus, Strieff was convicted, so he appealed. The Utah appeals court overruled and said the illegally obtained evidence should not be allowed in this instance. Now, the question comes before the U.S. Supreme Court at the request of Utah amidst a national debate over policing and at a critical time when the President has nominated a new justice. So, why aren't we talking about it?
"What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, search them?" asked Justice Sonia Sotomayor in a poignant moment during the arguments in Strieff. Fortunately, Justice Sotomayor recognizes the realities of society and acknowledges the potential of the Supreme Court, or any court's, rulings on matters of policing. Simply put, judges have the ability to set a tone for law enforcement and define what passes muster through their rulings on privacy issues.
In a similar situation to Strieff, the Baltimore police illegally stopped and searched a Johns Hopkins University doctor this winter. Dr. Zackary Berger left his home late in the evening to walk several blocks to a local drug store to retrieve cough medicine for his sick child. Dr. Berger was stopped and physically searched by a patrol officer because the officer claimed that Dr. Berger appeared to engage in a suspected drug transaction with another person. Dr. Berger says he never stopped on the way to the store, nor did he speak with anyone. After being cuffed, searched, and detained on the street, Dr. Berger was released with an explanation, but no actual apology. Dr. Berger went public with his incident to highlight the problems with police and civilian encounters hoping that he would have a voice in the community. The police responded by issuing an apology and scheduling hearings to review the incident—likely because of Dr. Berger's prominence in the community.
As Justice Sotomayor's question in Strieff suggests, we need to be honest about the implications surrounding police and civilian encounters. Mr. Strieff and Dr. Berger are both white. Berger is a well-respected doctor who was doing nothing wrong. However, it is African-Americans that are too often subjected to the humiliation, degradation, and physical injuries of illegal police stops and seizures. Yet, people of color often have no recourse and no voice. That is why our courts must preserve our constitutional liberties across the board when confronted with circumstances of illegal stops or searches. In turn, we all need to pay attention. While the police need to be able to effectively conduct investigations, everyone's rights must be upheld for the sake of all society. So, if you care that deeply about what's in your phones, then open your eyes to the personal privacy interests of all Americans.
Todd Oppenheim is a felony trial attorney of 11-plus years in the Baltimore City Public Defender's Office. Twitter: @Oppenheim4Judge