02-09-01

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Officer Safety Alert—Mobile Phone Guns

Handguns designed to look like mobile phones were among a stockpile of deadly gadgets seized by police after being smuggled into the Netherlands from Yugoslavia. The special Arrow Unit of the Dutch police disclosed that it had seized eight of the “shooting phones” in raids on five Amsterdam addresses. Also seized in the raids were hand guns, machine guns, hand grenades and other explosives; 19 pounds of heroin, counterfeit Dutch money and blank identification papers, and 29 guns disguised as key rings. Although police confirmed that most of the weapons had come from Yugoslavia, they did not know for whom they were intended. Police arrested six people in connection with the raids, including two Yugoslavians, one Croatian, and one Turk.

A spokesman for the Amsterdam police said that each of the mobile phones was clearly intended to be used at close range and contained four .22 caliber bullets. “For each shot, you have to press one of the numbers on the keypad. If you didn’t know they were guns, you wouldn’t suspect anything,” he said.

The weapon is approximately 14 centimeters high (including antenna), 5 centimeters wide, and comes with a black leather case. The upper section of the device contains four barrels, including the antennae. The barrels may not be readily apparent because the end can be fitted with a removable plastic cover. The lower section of the device contains the firing mechanisms for the barrels. Upper and lower parts of the apparatus slide together from the side; and a small moveable steel ball bearing slots into a cavity in the firing mechanism portion and aligns the two sections. The firing pins are thus aligned with the strike points of the bullets. A bar at the bottom secures the device and cocks the firing mechanism. Cocking the device raises four of the buttons on the device, which can then be used to fire the bullets. An X-ray of the device shows the four barrels and the firing mechanism.

The device is not capable of any telephonic function. Although the particular device seized was labeled as a “Nokitel” telephone, law enforcement should be aware that the possibility exists for other similar weapons to come on the market bearing other brand names.)

Legal Issues - Search and Seizure

The Indianapolis Police Department set up roadblocks for the purpose of detecting drugs. At the roadblock, an officer would advise the driver of the reason for the roadblock, and ask for the driver’s license and vehicle registration.

During the stop, the officer observed the driver for signs of drug use, and looked in the areas of the vehicle open to the officer’s view. At the same time, a drug detection dog would walk around the vehicle sniffing for drugs.

Departmental policies for the roadblocks permitted officers to search vehicles only when consent was given or a sufficient level of individualized suspicion existed. Each vehicle was to be stopped no longer than five minutes, but the actual time of the stop usually was much less. Officers had no discretion to take any motorist out of turn at the checkpoint.

Signs were posted along the roadway prior to the roadblock warning drivers that they were approaching a narcotics checkpoint and that a drug detection dog would be used.

During the months in which the roadblocks were conducted, more than a thousand vehicles were stopped, and fifty-five arrests were made for drug offenses. Forty-nine arrest were for offenses not drug-related.

The plaintiffs in this federal civil rights suit petitioned for an injunction to stop the roadblocks, and for a declaratory judgment that the practice violated the Fourth Amendment to the U.S. Constitution. The trial court held that the Fourth Amendment was not violated, but a divided Court of Appeals found that it was.

HOLDING: Searches not based on individualized suspicion usually violate the Fourth Amendment, although in some limited cases they may be reasonable. For example, in some of the “special needs” cases in which the government’s interests, other than the ordinary interest in law enforcement, outweigh the citizen’s right to be let alone, a search may be allowed without first establishing individualized suspicion.

Suspicionless stops at Border Patrol checkpoints, sobriety roadblocks, and random driver’s license checks have been approved in the past. These stops were not, however, for the purpose of detecting “evidence of ordinary criminal wrongdoing.”

Immigration roadblocks address the peculiar difficulties involved in policing a long border. It is almost impossible to determine from appearance that certain individuals are entering the United States illegally, and the government has a strong interest in maintaining the security of its borders that “tips the balance” in favor of a suspicionless stop.

Similarly, the government’s interest in sobriety checkpoints is very great. The hazard posed by drunk drivers, coupled with the relatively minimal intrusion involved in a roadblock, justifies a brief detention of motorists without individualized suspicion.

Highway safety also was the basis for allowing roadblock driver’s license and registration checks. In each of these cases, some important governmental interest other than crime detection was present to support the suspicionless stop.

The detention of motorists at a roadblock checkpoint is a “seizure” for Fourth Amendment purposes. That seizure is not transformed into a search, however, by the use of a dog to sniff outside the vehicle for drugs. Because a dog sniff is minimally intrusive, it is not an unreasonable invasion of the privacy of the motorist.

All of the evidence in this case indicated that the primary purpose of the detention was detection of drug violations. The Supreme Court never has approved a roadblock checkpoint to be used solely for the detection of ordinary wrongdoing where no other important interest, like safety, was served.

While the uses of checkpoints that have been approved in the past included law enforcement and crime control, they were not primarily for that purpose. If checkpoints primarily for the purpose of law enforcement were permitted, the Fourth Amendment would do little to prevent such measures from becoming a routine part of American life.

The problems associated with drug use are serious, but that does not justify departure from the requirement that the police have individualized suspicion before interfering with a person’s liberty. And violation of drug laws does not pose the same immediate threat to public safety that drunk driving or driving without a license do.

While these checkpoints might have had a secondary purpose of checking licenses and detecting drunk drivers, a roadblock cannot be justified simply because it may secondarily serve approved goals. To do so would be to approve virtually all roadblocks because they might, in addition to their primary crime control purpose, also marginally relate to safety.

Reasonableness under the Fourth Amendment is an objective inquiry, but the reasons for the government’s activity play an important part in determining the need for the intrusion.

An emergency, like stopping terrorists known to be traveling in an area, might justify a roadblock even without individualized suspicion. But a roadblock established primarily for the purpose of ordinary crime detection and enforcement requires some objective reason to believe the detained citizen is engaged in wrongdoing.

COMMENT: This case reiterates that a dog sniff is not a search because of the minimal intrusion involved. It simultaneously reaffirms the idea that searches and seizures usually require suspicion focused on an individual, not just a generalized suspicion that some people in any given group will be violating the law. The problem for the Court is that it previously has approved suspicionless searches in a number of situations, including stopping cars. In order to reconcile its decision in this case with its prior holdings, the Court draws the line at whether the “primary” purpose of the stop is to detect “ordinary wrongdoing.” If it is, individualized suspicion is required. City of Indianapolis v. Edmond, 2000 WL 1740936 (U.S. Sup.Ct.).

Sign Here, Punk

From the Chaplain