Monitoring and the Law

Jorge Rodriguez

jorgerodriguez@monitoringtimes.com

The Bill of Rights –

Void Where Prohibited By Law?

            Between 1969 and 1980 the Society for Individual Liberty created and distributed a political poster that showed the Bill of Rights with the words "Void Where Prohibited By Law" in red and as if rubber-stamped over the document. In the middle of that rubber stamp was the Forth Amendment – that most precious of rights which prevents the government from searching your person or property and seizing things without a warrant or probable cause.

            The Amendment is not void. Although the courts have carved out exception after exception causing some legal scholars to speculate that some day law students will only study the history of what was the Fourth Amendment, it is for now very much alive in all fifty states.

            Although only fifty-four words long, perhaps no other amendment to the Bill of Rights has generated more commentary and cases in the area of criminal law than the Fourth Amendment. In fact, before becoming lawyers, law students today spend an entire semester in a course entitled "Criminal Procedure" to learn the current state of the law with regard to those 54 words.

            The Fourth Amendment to the U.S Constitution provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Similar language and appears in the Constitutions and laws or each of the fifty states, giving that state’s citizens the same or in some cases greater protections than the Federal Constitution, but never less.

            It is not so much the power of the Amendment itself that has generated so much case law and commentary, but rather the result of the judicially created remedy for violations of the Amendment by the government. The Exclusionary Rule, as the remedy has come to be known, prevents the police from using evidence that has been obtained in violation of the Fourth Amendment. The rationale is simple; by not allowing the police to break one law to enforce others, you take away any incentive for their not following the Fourth Amendment.

            So why do so many people freely give up their rights under the Fourth Amendment when confronted by the police? The recent stories of two hobbyists may illustrate the point.

Case #1

            I'm a ham radio operator and scanner enthusiast who is in a little legal predicament. I live in an apartment building. I often get telephone conversations as inter-modulation or images on frequencies I listen to which are legal for me to monitor on my Bearcat BC 895XLT scanner. I do not monitor cordless phones intentionally.

            Last spring the police showed up at my door. They said someone reported that they heard the sounds of their telephone call coming from my apartment. I explained that I am a radio hobbyist and sometimes get interference from on my receivers. I allowed them in and when they investigated they even made a test call on a cordless phone. The audio from that test call came across my scanner on 451.775 MHz., a local business frequency which was programmed into my scanner. I explained to the officers that the frequency is not a cordless telephone or other prohibited frequency. I even retrieved from the Internet the FCC's online license data for this frequency. Now I’m facing criminal charges.

Case #2

            Another reader tells a similar tale while driving across state lines going from home to work. I was pulled over for speeding late one night on an interstate highway just across the state line from my home state. When the officer approached me, he asked, "Do you know why I pulled you over?" Before I could answer, he saw a scanner mounted in my car and immediately asked, “Why do you have this scanner in your car?" As it turns out, my home state does not have any laws about having a scanner in a vehicle, but the state where I was stopped does.

            Although I did not give permission for the officer to do a visual search of my car, he could see the radio, which was turned off and silent, mounted under the dash while standing outside my driver door and he even noted on the citation the words in plain view. I’m now facing a criminal charge of possession of a police radio.

Volunteering not a Virtue

            Could a different course of action, short of not having the radios, have prevented these hobbyists from getting charged criminally? Probably not; each fell victim to the belief that by cooperating and complying with the officers, the police would see that they were really not bad people and would let them go about their business.

            The hobbyist in the first example had no obligation to let the police into his home without a warrant. He also has a Fifth Amendment right to remain silent. He did not have to say anything to the police about what he did or didn’t do with his radio – or even that it was his radio and that he was or was not the listener of the radio.

            Our listener in the second example has similar rights in his car to be protected from unreasonable searches and seizures. Although in his case the doctrine of plain view applies. Plain view is a concept of law that says that where the police are for any reason at a legal vantage point to see something which the know is illegal, they can usually seize that item, even if what brought them to the legal vantage point was something completely unrelated.

            A common scenario is where the police serve an arrest warrant for a traffic violation or for failing to appear in court. When a person opens the door the police see illegal drugs and drug paraphernalia on a table a few feet away. The illegal drugs can then be seized since they are in plain view, even though that’s not what the police were looking for and they had no knowledge there would be drugs there until the door was opened.

            Ask a lawyer in your state what you should do if you were either of the persons who got in trouble above and you’ll probably hear: Don’t say anything and don’t consent to a search. Cooperation and confessions will not keep you from being arrested and charged with a crime, lawyers say. Criminal defense attorneys say you will rarely talk yourself out of being arrested if that was the officer’s plan all along. Instead, you throw away some of the only avenues a skilled attorney may be able to use to defend a case such as the two presented here.

            There is no need to be rude or impolite, they say; simply exercise your right to remain silent and do not agree to a search. Perhaps the back of a Chicago lawyer’s business card says it best: "Hourly Rate if you say anything to the police: $500. Hourly Rate if you keep your mouth shut $100."