By Thomas J. Martinelli, Adjunct Professor, Wayne State University, Detroit, Michigan
|Editor’s note: This article is the second in a four-part series of privacy-related articles that will appear in subsequent issues of Police Chief magazine.|
friend whose work entails a good deal of airline travel has a story some travelers have experienced. Like all of us, he is subject to the 3-1-1 rule of the Transportation Security Administration (TSA), both at home and in the cities he visits.
According to TSA’s rules, any packed liquids in carry-on luggage must be in a 3.4 ounce bottle or smaller and packed in a single, quart-size plastic zip-top bag. For those unfamiliar with the rule, the policy dictates that this bag must be taken out of the carry-on luggage, separated, and scanned by airport security in a gray bin.
Knowing this, my friend chooses to pack little or no liquids in 3.4 ounce containers and had successfully expedited the whole security process for months. Feeling immune to a 3-1-1 inspection, his expectation of privacy and anticipated “no hassle” comfort level has been reinforced, time and time again, by TSA officers across the country and specifically at his home airport.
That is, until one recent Saturday morning.
While preparing for his pre-TSA scanner routine, he took his shoes off and confidently sent his carry-on through on the conveyor belt, as he had done so many times before. Only this time, his bag was flagged, taken aside by a young TSA officer, and subjected to a full search. All of its contents were taken out, every crevasse was searched, and every zipped pocket hand swiped. My friend forgot he took a half-full shampoo bottle from a hotel visit. Although the liquid container was less than 3.4 ounces, he violated the 3-1-1 rule by failing to separate the shampoo in the zip-lock bag.
Pertinent to this discussion are his preconceived notions, or perceptions, of immunity he had regarding such governmental searches and intrusions. The outrage, humiliation, and embarrassment he experienced as a result of this “overzealous, cop wannabe” was unparalleled in his travels. This law enforcement officer was making an example of him by violating his constitutional right to privacy—at least, that’s how he perceived it.
The TSA officer took out my friend’s dirty laundry, laptop, papers, wallet, keys, and cell phone, all in plain view of the citizens behind him who were held up watching this search. The officer took all of the toiletries out, including the half bottle of shampoo, placed them in a separate white tray, and then ran the whole bag and white tray through the scanner again.
My friend stifled his anger, internalized his judgmental demeanor, and kept his mouth shut. He needed to catch his flight.
The fact was, the TSA officer was just doing his job.
The officer’s training, experience, and duty in adhering to his agency’s search policies demonstrated his professionalism and integrity. He and his TSA colleagues are tasked with preventing the next terrorist attack on the United States. There is no room for cordiality, assumptions, and policy noncompliance. His training demanded that he ignore the socioeconomic appearances, the age, the race, and the gender of those scanned. From toddlers to the elderly, every individual must be equally subjected to reasonable privacy intrusions for the safety of all. This officer’s training requires that he look at the behavior of each individual passenger and, if necessary and reasonable, carefully scour the contents of each individual piece of luggage that passes through his conveyor belt.
At the time of the search, my friend would not have acknowledged this rationalization of duty. Though his emotions were understandably justified, human, raw, and overwhelming, my friend was wrong.
But how could he justify these skewed, preconceived, incorrect privacy expectations? On his own continuum of security compliance, how could he have felt comfortable in approaching any airport’s security checkpoint without having to abide by the 3-1-1 rule that is clearly posted, with plastic bags offered in bins just for this safety policy compliance?
The TSA officers’ colleagues in other cities, who received the same training as he did, fostered and reinforced my friend’s ill-conceived perception of privacy every time he successfully passed through a security checkpoint without being subjected to a 3-1-1 rule compliance. His expectation to privacy was understandably reinforced through his past security experiences in airports across the country.
Preconceived Notions from Mixed Law Enforcement Signals
The realities in law enforcement today are that no matter what agency one works for, all sworn members receive uniform training and education regarding policies, procedures, and the law. Yet uniform implementation of those policies throughout any given agency will always be limited to the human subjectivity, the personal discretion, and the differing levels of supervisory oversight. This sends mixed signals to citizens, complicating the ongoing relationship between the police and the policed. It creates differing expectations of privacy and lays the foundations for allegations of police misconduct regarding searches, seizures, and citizen perceptions. The following discussion offers a better understanding of privacy issues in the law and law enforcement’s influence on those legal parameters.
“Shock[ing] the Conscience”
In Rochin v. California,1 the U.S. Supreme Court first used the term “shocks the conscience” in reference to an illegal, warrantless search by officers in a narcotics case. In a unanimous decision, the Court admonished the police tactics used to recover narcotics evidence and reversed the defendant’s conviction for possession, ruling that the officers’ retrieval process violated Rochin’s constitutional right to be free from unreasonable intrusions to his body and due process of law, as guaranteed by the Fourth, Fifth, and Fourteenth Amendments.
The justices concluded that the officers illegally entered the suspect’s mother’s house through the front door, broke down Rochin’s second-floor bedroom door, and confronted him and his wife while the couple was in bed. Rochin grabbed two pills sitting on his bedstand and swallowed them. The officers were unsuccessful in physically retrieving the pills from Rochin’s person, so they arrested Rochin and took him to a hospital. Again, without a warrant, they had him strapped to a gurney and ordered a doctor to pump his stomach. The officers retrieved the capsules, locked up Rochin, and tendered the capsules as the sole evidence in his trial for possession of morphine. He was convicted.
The Court members were unanimously outraged at the officers’ tactics. They saw no difference between this case and a “verbal confession extracted by physical abuse and a confession [evidence] wrested from defendant’s body by physical abuse”2 in ruling that Rochin’s due process and Fifth and Fourteenth Amendment rights were violated. They concluded that the use of stomach-pumping to obtain evidence when conducted without the accused’s consent (and without a warrant) “shocks the conscience” and constitutes “methods too close to the rack and screw to permit constitutional differentiation.”3
Although this was a pre–civil rights and pre–exclusionary rule case, it was obvious to the justices that such an intrusive search of Rochin’s stomach contents offended the “community’s sense of fair play and decency” as tantamount to a forced confession.4 Since then, the Supreme Court has used a balancing test to adjudicate allegations of brutal and illegal police tactics. The test balances society’s need to be free from criminal activity versus the individual’s right to be free from unreasonable searches and seizures by government agents. The Fifth and Fourteenth Amendments demand that enforcement of the law is to be conducted in a fair and equitable manner so as not to be offensive enough to shock the conscience of a civilized society. Warrantless searches (without any applicable exceptions) conducted outside of the judicial process are unreasonable, thus unconstitutional. Juries understand privacy issues, and updated training curriculums must explore evolving privacy expectations.
No Focus on Subjective Citizen Expectations
The decades-long debate of Fourth Amendment issues in legal circles has questioned whether privacy expectations involve the traditional originalists’ argument that governmental trespass must be physical in nature, or involve a more philosophical protection of the intangible, such as beliefs, thoughts, emotions, and sensations. Or does the law employ a blended test of both positions?
For decades, Katz v. United States5 has been the leading case that defined Fourth Amendment issues regarding law enforcement surveillance techniques and unreasonable governmental intrusions to privacy. Prior to Katz, Fourth Amendment surveillance restrictions on law enforcement were limited to searches and seizures of tangible property: “surveillance without any trespass and without the seizure of any material object, [falls] outside the ambit of the Constitution.” 6 This was the originalist approach to privacy expectations, interpreting physical trespass as a mandatory requirement for Fourth Amendment application, as it pertained to “persons, houses, papers, and effects,”7 or tangible possessions.
Originalists argued that a strict application of the Constitution, more specifically the Bill of Rights, demanded adherence to the intentions of the drafters of the document to avoid individual judicial subjectivity.8 This was, and is, problematic as the interests of society evolve, as technology evolves, and as the application of the law evolves. Yet prior to Katz, originalist theories of law dominated U.S. Supreme Court rulings.
The other side of the argument defends the Constitution as a fluid, living, breathing document that must contemplate contemporary values and societal issues pertinent to the times. Critics of originalism argue that the framers of the Constitution intentionally kept the verbiage short and all encompassing, acknowledging that times change and, so too, might the application of their country’s laws. General words and phrases such as “papers and effects” were used so that future interpretations of the law could address contemporary, criminal justice issues.9 Could anyone successfully argue that Thomas Jefferson truly contemplated DNA testing, cybercrimes, and the devastation anthrax poses to a community?
The Katz ruling extended the Fourth Amendment protections from unreasonable searches and seizures to protect individual interests based on a “reasonable expectation of privacy.”10 The government bugged the outside of a public telephone booth Katz used to transmit interstate gambling wagers. His conviction was premised on the one-sided, taped conversations the government tendered as part of its case in chief. In his appeal to the U.S. Supreme Court, Katz argued the evidence used against him was obtained in violation of his Fourth Amendment privacy expectations and the exclusionary rule demanded the disallowance of his conversations and dismissal of all charges.
A two-pronged test for judging unreasonable governmental intrusions to privacy expectations was established. First, a court must determine if the accused exhibited an actual (subjective) expectation of privacy, and second, if society was prepared to recognize that this expectation was (objectively) reasonable. Once adjudicated, if both queries are answered in the affirmative, then there exists a right of privacy. Without a valid warrant or applicable Fourth Amendment exceptions, courts concluded that when a governmental privacy violation occurred, all “fruit of the poisonous tree”11 recovered after the violation (exclusionary rule application) would not be admissible. Katz’s case was dismissed.
The Fourth Amendment protects people, not places, yet the Katz two-pronged test has been problematic in any discussion regarding society’s expectation of privacy. It is confusing, lacks focus, and is circuitous in its argument. If society defines its privacy expectations in reliance on judicial rulings and judges and justices use societal values and mores to establish sound judicial precedent that purportedly reflects society’s sentiments, then which came first, the chicken or the egg?12 This circulatory argument complicates police legal and ethical training as it frustrates those who look to the law for policy guidance and focus, in preparing their curriculums.
There has been a recent legal push in privacy law application to quantify the concept of privacy not as a question of law, but as a question of fact. When an individual “has secured the privacy of particular information, the Fourth Amendment focuses on the reasonableness of the government’s actions in undoing that privacy, not on the reasonableness of the individual’s expectations” (emphasis added).13 The legal onus is on law enforcement, and not on the target citizen, to demonstrate the reasonableness of the measures taken to pierce that veil of privacy in order to search or seize, without a warrant. The Fourth Amendment simply protects citizens from “unreasonable” governmental searches and seizures.
Finally, the dissenting opinion in Illinois v. Wardlow14 has been a valuable tool in police training circles for some time.
In a 5–4 ruling, the U.S. Supreme Court recognized (and police trainers have discussed) that sometimes innocent citizens are investigated by the police; it is part of the business of policing. In this case, the defendant was in a high-crime area known for heavy narcotics trafficking. When he saw uniformed police officers, he ran in the opposite direction, was caught and frisked, and was found to have a weapon on his person. He was convicted of unlawful carrying of a weapon by a felon.
The majority ruled that unprovoked flight, considered with the totality of the circumstances confronting the officers at the time, constitutionally laid the foundation for reasonable suspicion—enough to investigate a fleeing citizen without violating any Fourth Amendment privacy issues. Environmental factors such as a high-crime locale, officer safety, and unprovoked flight crossed the threshold of reasonable suspicion enough to perform a brief investigation. Articulable facts and circumstances confronting street-level officers are always a defense to allegations of privacy violations.
For training purposes, the opinion of the dissenting justices has some merit to it. They cite the historical animosities that have been a part of police-minority dynamics since the profession’s beginnings. Reading between the lines in Justice John Paul Stevens’ minority opinion, he suggests that it’s understandable how police investigative stops, in the past, have given minority citizens justifiable reasons to fear the police and flee them, though they are innocent of any criminal activity.
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor ”abnormal.” Moreover, these concerns and fears are known to the police officers themselves and are validated by law enforcement investigations into their own practices.15
For years, police trainers have cited the dissenting opinion in training circles when discussing citizen and minority perceptions, their expectations of privacy, the law, and police procedures. Who created this perceived fear of the police, so much so that innocent citizens might justifiably run at the sight of them? Justice Stevens implied that this perception of fear, created by the police themselves, was so prevalent that minority citizens had no expectation of privacy and felt they had only one alternative: to flee.
Painting all police officers with such a broad brush is not wise and is counterproductive, and clearly not Justice Stevens’ intent. But his message is that agencies must recognize citizen perceptions of their sworn members as a result of past unethical practices, negative media coverage, and historical tensions that still exist today. Ethics training and discussions of citizens’ expectation of privacy in minority neighborhoods educate officers with a different perspective of policing.
Lone Recruits and Privacy Expectations for the Future
Reportedly, there were 12 terrorism cases in 2009 involving Muslims living in the United States. This is unprecedented in U.S. history. The Obama administration continues to review policies regarding how intelligence is gathered and shared as it pertains to “the unique challenges posed by lone recruits,” a reference to those lone-wolf offenders who are not officially associated with any formal extremist group.16 Domestic extremists who use the Internet to connect with radical zealots and then wage their own personal jihads or “lesser jihads of the sword” against the United States and its citizens are a growing problem for law enforcement.17 Though extremist in their ideologies, they are not affiliated with any formal terrorist group, which makes it that much more difficult to track them through intelligence circles.
As these lone wolves continue their attacks, all citizen privacy expectations, regarding air travel, border crossings, investigative stops, and overall police procedures will need to adjust to these internal threats and be more amenable to reasonable privacy intrusions within the law.
The attempted bombing of Northwest Flight 253 over Detroit, Michigan, on Christmas Day 2009 continues to haunt those who live in the Detroit area, who had loved ones on that flight, or who work in law enforcement intelligence. But in the aftermath of Umar Farouk Abdulmutallab’s failed Christmas Day attempt come the realities that law enforcement efforts to investigate and thwart terrorist efforts must be as zealous as the TSA officer at the beginning of this article. As reports of lone wolf attacks increase, society’s privacy expectations regarding law enforcement investigations and searches and seizures will have to decrease. This is best evidenced by Hebba Aref’s experience and words following the Christmas Day scare.
Aref, an American Muslim attorney working in Kuwait, was on Flight 253 coming home for a surprise Christmas Day visit. She has been an outspoken advocate against law enforcement profiling and for the preservation of basic privacy expectations for years. But this experience truly gave her a different perspective of the “complexity of the world” we now live in. “I’m always standing up for rights and privacy concerns, but now I hope that body scans will be mandatory. Balanced against national security, it’s worth the invasion of privacy. And I acknowledge the fact that there has to be attention paid to Muslims.”18 With the increase in terrorist threats, gang activity, and drug cartels that confront law enforcement, society’s expectation of privacy—in its current state—may be a thing of the past, at least for now.
Ethics training today is a much more involved process than it has been in the past. Training curriculums must focus on discussions of privacy expectations, organizational guidance regarding the use of police discretion, and the implied messages law enforcement send to the citizens they serve in the actions they take or choose not to take. Right or wrong, citizens have their own perceptions of law enforcement and officers must acknowledge that not everyone shares the same values and understanding of the right to privacy. The challenge for law enforcement today is to be aware of the changing times, changing expectations, and changes in the law in the delivery of their everyday services. Overzealous professionalism is the key to positive community relationships. ■
1Rochin v. California, 342 U.S. 165, 173, 72 S. Ct. 205 (1952).
2Id. at 167, quoting People v. Rochin, 101 Cal. App. 2d 143, 149–150 (1951).
3Id. at 172.
4Id. at 175.
5Katz v. United States, 389 U.S. 347, 88 S. Ct. 507 (1967).
6Id. at 353.
7Id. at 365.
8Christopher E. Smith, Constitutional Rights: Myths and Realities (Belmont, Calif.: Thomson/Wadsworth, 2004), 43.
10Katz, 389 U.S. at 360.
11Nardone v. United States, 308 U.S. 338, 341 (1939).
12Jim Harper, “Reforming Fourth Amendment Privacy Doctrine,” American University Law Review, 57 (2008): 1392, http://www.wcl.american.edu/journal/lawrev/57/harper.pdf?rd=1 (accessed November 30, 2010).
14Illinois v. Wardlow, 528 U.S. 119, 120 S. Ct. 673 (2000).
15Id. at 132–133.
16Niraj Warikoo, “Calls for Surveillance Rise with Jump in U.S. Terrorism Cases,” Detroit Free Press, January 17, 2010.
18Ellen Creager, “Privacy Advocate Changes Her Stance after Ride on Flight 253,” Detroit Free Press, January 7, 2010.
Please cite as:
Thomas J. Martinelli, "Updating Ethics TrainingPolicing Privacy Series: Respecting Society's Evolving Privacy Expectations," The Police Chief 78 (February 2011): 70-76.