The Fourth Amendment and the Boston Marathon Attacks: Racialized “Reasonable Suspicion” and the Search of the Saudi Marathoner’s Apartment

The Boston Marathon attacks have brought to the surface some of the best and the worst in Massachusetts.

On the one side, many news sources reported responsibly and refused to speculate too quickly and without foundation about who the bombers were or why they might have done what they did. There seems at this stage good evidence on which to base the arrest of Dzhokhar Tsarnaev. Above all, he was taken into custody quickly and alive, and Bostonians will be able to learn more about the motivations behind the attacks.

On the other side, panic, prejudice and the needs of the news cycle fueled an almost certainly unconstitutional search of an innocent Saudi marathoner’s house, an attack on a Muslim doctor in Malden, a call for genocide of Muslims, and a martial law-style lockdown of a vast area of metropolitan Boston.

This is the blog for the Campaign for Digital Fourth Amendment Rights, so unsurprisingly I’m going to focus on some of the Fourth Amendment issues arising out of the attacks; principally, the stop of the Saudi marathoner and the search of his apartment in Revere, and the constitutional issues raised when a householder refuses entry to law enforcement during house-to-house searches for a fugitive.

Follow me below the fold for the first of these!

The New Yorker’s blog reports:

A twenty-year-old man who had been watching the Boston Marathon had his body torn into by the force of a bomb. He wasn’t alone; a hundred and seventy-six people were injured and three were killed. But he was the only one who, while in the hospital being treated for his wounds, had his apartment searched in “a startling show of force,” as his fellow-tenants described it to the Boston Herald, with a “phalanx” of officers and agents and two K9 units. He was the one whose belongings were carried out in paper bags as his neighbors watched; whose roommate, also a student, was questioned for five hours (“I was scared”) before coming out to say that he didn’t think his friend was someone who’d plant a bomb—that he was a nice guy who liked sports. “Let me go to school, dude,” the roommate said later in the day, covering his face with his hands and almost crying, as a Fox News producer followed him and asked him, again and again, if he was sure he hadn’t been living with a killer.

Why the search, the interrogation, the dogs, the bomb squad, and the injured man’s name tweeted out, attached to the word “suspect”? After the bombs went off, people were running in every direction—so was the young man.

CBS updated its original reporting to make it clear that he wasn’t tackled by a bystander, but was suspected by law enforcement themselves:

As everybody’s kind of standing in shock, three Boston PD detectives see this guy moving quickly out of the crowd and as they’re watching him, he seems to be moving very deliberately away, which could be a very natural thing after a bombing,” reported Miller on “CBS This Morning. “They stop him because he’s covered with blood and all kinds of gore from the explosion. They think he may be injured, but it turns out that most of that is from other people. But he does have burns on his hands,” said Miller. “They engage him, they start asking questions. There are things about his responses that made them uncomfortable, so they arrange to get him to the hospital.”

I’m going to follow the policy of the New Yorker here, and not use the gentleman’s name. He had apparently come to Boston, like many immigrants, to study English. I, too, came originally to the United States as a student, back in 1999. But I, unlike him, don’t “look” foreign, so it’s easy for me. After he was taken to hospital, there then followed hours, and hours, and hours, of baseless speculation by the media that instead of being another victim of the bombing, he was the bomber himself.

I will be very interested to discover, in the coming weeks, whether there was any warrant for the search of this man’s apartment. If there was, on what evidence was it based? Did he consent while in hospital for the police to search his apartment? If there was no consent, is it OK for the police to toss someone’s apartment and interrogate his neighbors for hours, based on nothing more than the BPD detectives’ suspicions?

The problem here goes back to the Supreme Court’s 1968 decision in Terry v. Ohio. This introduced the standard of “reasonable suspicion” rather than the Fourth Amendment’s “probable cause” as a justification for a police stop. In the forty-five years since then, we have seen ample evidence that allowing a lower standard produces police stops that are heavily biased towards ethnic minorities and the poor. Unconscious racial bias is extremely common, and there is no reason to believe that the police are exempt from it; but their enormous power to bring people into the criminal justice system requires that they be held to a higher standard. Even in the midst of the confusion caused by a bombing attack – especially then! – the police should be held to the higher standard of probable cause.

Glenn Beck and The Blaze asserted during the week that this gentleman’s student visa is being revoked and that he is being deported, something that the Department of Homeland Security and ICE have strongly denied. They assert that the National Targeting Center opened up a file on him last Tuesday at 4pm, citing his involvement in this investigation as the reason for his deportation. The source is poor-quality, and before other suspects were found they were busy asserting that the Obama administration was covering up the deportation. That’s not what interests me. What interests me is whether it’s true that the NTC set his deportation in motion. The NTC is one of the many agencies of the surveillance state. It is outrageous, but far from unprecedented, that someone’s deportation could be set in motion when there is no evidence of their actual involvement in a bomb attack other than as a victim. If true, this reinforces our position that the police have to be held to a higher standard of proof than mere “reasonable suspicion” if they are going to involve someone in the criminal justice system. “Probable cause” is the proper and Constitutional standard.

Side point: This is a topic we’ll be returning to, but in Los Angeles, it appears that the local fusion center has found even the weak “reasonable suspicion” standard too strict, and have argued for an even weaker “reasonable indication” standard. This reduces policing to a joke, destroying lives on the basis of rumormongering. It is horrifying that we have reached such a point. Law enforcement officers have better things to do than to chase up rumors relating to every “funny-looking” person some member of the public finds suspicious.

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