August 13, 2008
Legal Department
Search and Destroy
Rob at the 26th St. Bar Association has a fascinating post, at least to a non-lawyer like me, about the difficulty the state has in proving constructive possession of contraband.
What really caught my eye, however, was the description of the police raid:
The police still came in, without any information that there would be guns or possible violence, shot all three of the family's dogs (two of which were chained up and on less than four feet of leash) and tore the house apart.
This touches on two interesting Drug War issues. First, cops like to shoot your dogs, and second, cops like to break your stuff. The former has been a topic of this blog before, and the latter is the subject of a recent Eighth Circuit decision.
In United States v. Santana-Aguirre, No. 07-3706 (8th Cir. August 12, 2008) (opinion), a 2-1 panel held that when you consent to a search, you also consent to the destruction of your property.
The property in question was a bunch of cheap candles. No great loss, except of course to people who can only afford cheap candles. But it seems clear that police will be quick to apply this ruling to everything.
They can already destroy your car's spare tire under an earlier decision, but now they will be able to slice open your child's teddy bear, open all the canned goods you just bought at the grocery, or smash your laptop to pieces as part of the search.
It's not hard to imagine this will be used punitively: If some smartass gives them trouble on the street, cops will "search" his cell phone to teach him a lesson.
Maybe there's a bright side. If you tell a cop that you don't consent to a search and he comes back with "Why? Are you hiding something?" just tell him that if you gave him permission to search, then under Santana-Aguirre you'd also be giving him permission to break all your stuff, and you certainly don't want him to do that.
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