Posted by Edmund R. Folsom

October 18, 2014

A few loosely related matters caught my attention in the news yesterday. One was a piece by Charles Krauthammer, in which he criticized President Obama for once declaring that a choice between liberty and security is a false choice.  Krauthammer states:  “On the contrary.  It is the eternal dilemma of every free society.”  The other bits are examples of that dilemma, demonstrated in ways large and small.   There was an op ed piece about the Heien v. North Carolina case, recently argued before the U.S. Supreme Court.  Then there was a story about the FBI’s complaints about technology companies encrypting smartphone and operating system data.  And there was a story about a search conducted by the Biddeford P.D. and Maine Drug Enforcement Agency, of lockers and cars at Biddeford High School and the Biddeford Regional Center for Technology, using three drug-sniffing dogs.

In the Heien case a police officer stopped a vehicle under the belief that it was in violation of North Carolina law, because it only had one working brake light.  In fact, on the date of the stop, North Carolina law only required vehicles to have one working brake light.  The question in that case is whether the stop, which led to the discovery of illegal drugs, was a constitutionally unreasonable search and seizure, given that it was based on the officer’s misunderstanding of law.  The answer will strike the balance between the freedom to travel unmolested by the police and whatever public safety gains are to be had from letting police use the fruits of searches and seizures grounded in their failure to understand applicable law.

In the case of data encryption, the FBI argues that a balance must be struck that prevents individuals from keeping secrets from the government.  The FBI complains that investigations will be frustrated if personal data is encrypted to make it inaccessible even when agents have a search warrant.

In cases of drug sniffing dogs used to comb through high schools and their parking lots, the balance has already been struck in favor of whatever security is to be gained by conducting such searches.  First, the Supreme Court has long held that we all have a diminished expectation of privacy in our automobiles, so no warrant is required to search an automobile as long as probable cause exists for the search.  Second, the Supreme Court has also held that running a drug-sniffing dog around the outside of a motor vehicle is not a “search,” for Constitutional purposes, and that an alert on a vehicle by a trained drug-sniffing dog can provide probable cause for a search.  Third, the Supreme Court has pretty much declared open season on searches of school lockers for contraband.

In the Biddeford High drug sweep, there were no drugs found, even though the drug-sniffing dogs did alert a few times. I am bothered by the idea of a large group of police and drug-sniffing dogs roving through a high school and shaking down lockers, developing probable cause by use of their drug-sniffing dogs to search areas where there is no contraband.  I don’t like the particular balance that strikes between liberty and security, at all.   It’s seems a little heavy handed.  It smacks a little too much of the totalitarian for my taste.  As for the dog sniffs in the parking lot, people should understand, there’s not a thing in current U.S. Supreme Court interpretations of the Constitution that would make it an unreasonable search for the police to dragnet every public area of an entire town, running their drug- sniffing dogs around all vehicles parked in those areas, using their dog’s alerts as probable cause for warrantless searches of the vehicles they alert upon, all day, any day, in any town U.S.A.  How does that balance between liberty and security strike you?

As for the FBI’s complaints, I find myself a little wary.  I can envision situations where the inability of police to access encrypted data could result in loss of life.   But I also know in my bones that there are ultimately no self-imposed limits on how far police and intelligence-gathering agencies will intrude into the realm of personal privacy if left to their own devices.  When they call for laws that make it impossible to communicate electronically without the government being able to snoop, I know they are calling for a power they will abuse as soon as they have the chance to abuse it.

As for police who stop and search people based on a law they believe exists but actually doesn’t, I think we should encourage police to know the state of the law by depriving them of the fruits of such blunders.   Otherwise, we will no doubt witness lots of fuzzy understanding of the law in furtherance of excuses to intrude on personal liberty.  Reward lack of knowledge and, by God, it’s lack of knowledge you’ll get.

The choice between liberty and security is the dilemma of every free society. One way to eliminate it is to tip so far in favor of security as to no longer be a free society. At that point, I bet there would be lots of police officers running around with police dogs sniffing here and there, and officers stopping and searching people based on laws that don’t quite exist, and laws in place to ensure that all communications are accessible to government scrutiny.  Something about those parallels gives me the creeps.