'99 Problems' but the Fourth Amendment Ain't One

About 45,000 people graduate from law school each year. The remaining 316.055 million Americans get their legal education from pop culture. Everything we know about forensic investigation, we get from CSI. Everything we know about criminal law and the justice process, we get from Law and Order marathons. And now, everything we know about the Fourth Amendment comes from Jay Z's '99 Problems.' [caption id="attachment_4393" align="aligncenter" width="468"]article-0-0D0D95D400000578-691_468x422 Image Credit: dailymail.co.uk[/caption] Sometimes, pop culture gets it right; often, it perpetuates myths and misconceptions about the way things really are. Saying, "I know my rights," because we watch a lot of courtroom drama is akin to saying, "I can perform open heart surgery," because we watch a lot of ER. One law professor took a close look at pop culture and the law when he performed a line-by-line analysis of the second verse of Jay Z's '99 Problems.' While pop culture may not tell us what we really need to know about the law, using it as a tool for understanding is a common pedagogical strategy to help students make meaningful connections. That's exactly what Caleb Mason, Associate Professor of Law at Southwestern Law School and former Assistant U.S. Attorney, did when he wrote the essay, "Jay-Z’S 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps." In his article, Mason goes line-by-line through the second verse of the song, in which Jay-Z details a traffic stop as he is transporting drugs, an incident the rapper says is based on a real experience. I'm not going to go through and rehash the article, because you can read it for yourself to see what Mason says Jay Z got right about his Fourth Amendment rights, and what he got wrong. If you haven't read the article, you really should--whether you're a law student, a lawyer, a law enforcement agent, a drug trafficker, or just someone interested in understanding your constitutional rights. However, I do want to spotlight something interesting that Mason points out in his analysis--the misconception that police need a warrant to search your vehicle in a traffic stop. In the article, Mason writes about a lot of things that Jay-Z, as the detainee in a traffic stop--who happens to be transporting drugs--gets right:

  • He chooses to stop rather than to attempt to evade police. ("I got two choices y’all, pull over the car or / Bounce on the double put the pedal to the floor. / Now I ain’t trying to see no highway chase with jake / Plus I got a few dollars I can fight the case."
  • He doesn't answer police questions about the nature of the stop. ("And I heard, “Son do you know what I’m stopping you for?” / “'Cause I’m young and I’m black and my hat’s real low? / Do I look like a mind reader sir, I don’t know."
  • He asks the officer if he is under arrest. ("Am I under arrest or should I guess some mo'?")
In each instance, Mason explains why Jay-Z made the appropriate choice. However, it is at this point in the song that Mason says Jay-Z's knowledge of the Fourth Amendment gets a little fuzzy. In the narrative, the cop asks Jay-Z to step out of the car, and he refuses. Unfortunately, a Supreme Court ruling in Pennsylvania v. Mimms holds that it is not a Fourth Amendment violation to ask a person to exit the vehicle in a traffic stop:

“[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.”

After the officer asks Jay-Z to step out of the vehicle, he asks if he can search the car. Jay-Z rightfully withholds consent. You have the right to refuse consent to a search. The police will not notify you of your right to refuse, so it is important to know that you do have that right. One important thing to note: Your refusal does not mean that police cannot search your vehicle. There are lots of ways around your refusal, including "reasonable suspicion." However, if you have consented to the search, it trashes your ability to argue illegal search and seizure, and it ruins a lot of defense remedies available to you. This is something else that Jay-Z got wrong: that police cannot search a locked trunk (or glove compartment) without a warrant: "Well, my glove compartment is locked, so is the trunk and the back, / and I know my rights so you go’n need a warrant for that.” Mason explains:

"If this Essay serves no other purpose, I hope it serves to debunk, for any readers who persist in believing it, the myth that locking your trunk will keep the cops from searching it. Based on the number of my students who arrived at law school believing that if you lock your trunk and glove compartment, the police will need a warrant to search them, I surmise that it’s even more widespread among the lay public. But it’s completely, 100% wrong.

There is no warrant requirement for car searches. The Supreme Court has declared unequivocally that because cars are inherently mobile (and are pervasively regulated, and operated in public spaces), it is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime.75 You don’t have to arrest the person, or impound the vehicle. You just need probable cause to believe that the car contains evidence of crime. So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs."

A lot of times, the more loudly someone protests, "I know my rights!" the more likely he or she is to be completely misguided about the rights. It is important that all citizens truly understand what is expected of them and what law enforcement can and cannot legally do. Remember: protect your right to silence, do not consent to a search, and call your lawyer.

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