99 Problems

From my brother-in-law, a.k.a. MC Law-talkin'-guy:

I thought I would send you a summary of one of the best legal pedagogical tools I've come across in recent years: Jay-Z's second verse to the song 99 Problems.  I recently became reacquainted with the song while listening to the Jaydiohead mashup 99 Anthems [Youtube link not safe for work or innocent ears], a mix of the lyrics to 99 Problems and the music of Radiohead's The National Anthem (which is a great combination, in case you haven't heard it).  I noticed that the second verse raises a lot of issues concerning the scope of law enforcement authority when they pull over your vehicle, and, lo-and-behold, a law professor and former Assistant United States Attorney from the Southern District of California recently wrote an article based on this very concept (PDF document).  Hopefully you find some of this interesting and helpful, and, remember, when in doubt about what you can and can't do and what limits there are on the police activity around you, ask a lawyer. 

Here are the lyrics and my synopsis of the points of law I recognized and the author of the article points out:

1. The year is '94 and in my trunk is raw

2. In my rear view mirror is the mother fucking law

3. I got two choices yall pull over the car or

4. bounce on the double put the pedal to the floor

5. Now I ain't trying to see no highway chase with jake

6. Plus I got a few dollars I can fight the case

7. So I...pull over to the side of the road

So, Jay-Z is getting stopped by police while in the car.  He's in the process of transporting cocaine, and he is weighing whether to try and flee, or whether to pull over.  He decides to pull over, which is probably the right choice becuase if you try to run from the cops and they catch you, your decision to flee provides them with a new, legitimate reason to suspect criminal activity, and you lose the opportunity to challenge the legality of the initial stop.  United States v. Garcia, 516 F.2d 318, 319 (9th Cir. 1975).  If he runs and tries to ditch the contraband (which is unlikely to work since they are in his trunk) and the cops later find what he throws out of the car, he has no basis to suppress that evidence because he has "abandoned" it for Fourth Amendment purposes.  California v. Hodari, 499 U.S. 621, 629 (1991).  If you are pulled over illegally and want to fight it later, you have to submit to the show of police authority.    California v. Brendlin, 551 U.S. 249, 253 (2007).      

8. And I heard "Son do you know why I'm stopping you for?"

9. Cause I'm young and I'm black and my hat's real low

10. Do I look like a mind reader sir, I don't know

Jay-Z suggests that he has been profiled as a drug dealer when asked why he is being pulled over.  While enforcement of the law based on purely racial reasons violates the Equal Protection Clause of the Fourteenth Amendment to the US Constitution, if there is objective probable cause for the traffic stop, even if the cop provides a pretextual reason for pulling you over, pretext is not a basis for Fourth Amendment suppression.  Whren v. United States, 517 U.S. 806 (1996). Jay-Z's response to this question from the officer is spot on: he gets to find out what the officer is going to say about the stop and it does not admit any misconduct.  There is no reason when you get stopped to tell an officer that you are sorry for speeding.

11. Am I under arrest or should I guess some mo?

It's good to find out if you are under arrest.  If you are placed under arrest, the police can impound your car and do an inventory search of the vehicle and also an inventory search of your person, clothing, and bags without any suspicion of illegal activity at all.  Colorado v. Bertine, 479 U.S. 367, 370-71 (1987); United States v. Robinson, 414 U.S. 218, 235-36 (1973).  If you aren't under arrest, then the police need probable cause to search the car.  If the cops do not have probable cause to believe there is evidence of a crime in your car, then you can suppress any contraband seized if they search it anyway. 

12. "Well you was doing fifty five in a fifty four"

As a matter of law, if you are even one mile per hour over the speed limit, that's sufficient justification to pull you over, write you a ticket, and arrest you if the officer chooses, even if the offense you committed was a misdemeanor not punishable by jail time.  Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).  That the officer had a basis to pull you over is what matters for suppression issues, and given the litany of traffic regulations, a cop can follow you for about 3 blocks and almost certainly find some reason to pull you over.  See Paul Butler, The White Fourth Amendment, 43 Tex. Tech. L. REv. 245, 252 (2010) (discussing a ride along with police where the author tells the cop to stop a car and within a few blocks the officer finds a valid legal justification for the stop).

13. "License and registration and step out of the car"

14. "Are you carrying a weapon on you I know a lot of you are"

15. I ain't stepping out of shit all my papers legit

Jay-Z refuses to step out of the car as ordered by the officer.  However, a driver does not actually have the right to refuse an order to exit the vehicle during an ordinary traffic stop.  Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977).  The question about the weapon is interesting because the police have a right, during a legitimate traffic stop encounter with an individual, to do a weapons pat-down under Terry v. Ohio, 392 U.S. 1 (1968).  The police can also do a "frisk" of the car itself, i.e., search the interior passenger compartment of the car for readily available weapons.  Michigan v. Long, 463 U.S. 1032 (1983).  The rationale for these rules is to protect officer safety--if the person they stop is a criminal, they might be attacked with a weapon if not permitted to do a limited search for weapons.  Good thing for Jay-Z his dope is not in the passenger compartment, but in the trunk of his car. 

16. "Do you mind if I look round the car a little bit?"

Here, the officer is asking Jay-Z for consent to search the vehicle.  If you give the police consent to search, that renders moot any other problems that might arise with the search that might later arise, such as a later determination that the police lacked probable cause.  Shneckloth v. Bustamonte, 412 U.S. 218, 219 (1973).  And, you don't have to know that you have the right to consent for your consent to be knowing and voluntary as a matter of law.  Shneckloth, 412 U.S. at 224. 

17. Well my glove compartment is locked so is the trunk and the back

18. And I know my rights so you gon' need a warrant for that

19. "Aren't you sharp as a tack are some type of lawyer or something?"

20. "Or somebody important or something?"

21. Nah I ain't passed the bar but I know a little bit

22. Enough that you won't illegally search my shit

Here is Jay-Z's biggest error in the song, and the myth that the essay attempts to debunk: locking your trunk will not keep the cops from legally searching it.  There is no warrant requirement for car searches.  All the cops need is probable cause to believe contraband or evidence is in the vehicle.  California v. Acevedo, 500 U.S. 565, 580 (1991).  

23. "Well see how smart you are when the K-9's come"

The cops cannot unreasonably extend a traffic stop for legitimate reasons, i.e. to investigate the violation of the traffic law write you a ticket.  Illinois v. Caballes, 543 U.S. 405, 408-09 (2005).  This means that the cops can't hold you there for an unreasonably long time while they wait for a dog unit to arrive and do a sniff on your car.  Caballes, 543 U.S. at 407.  To avoid the dog sniff, it helps if the individual clearly asserts his rights and says that he does not agree to the prolonged detention while the K9 unit arrives. 

24. I got 99 problems but a bitch ain't one

Jay-Z refers to the bitch in this line as the cop and the K9 dog that are on their way to the scene.  He also says that nowhere in the song is he referring to a woman when he uses this refrain.  

-Jay-Z, Decoded 61 (2010).