In the now classic 2004 song 99 problems. Jay-Z describes an encounter with police during an automobile traffic stop. Jay-Z portrays himself as the driver of a "dirty" (full of drugs) car. Jay (hereinafter "Jay-Z" or "the "Driver" directly addresses hotly contested issues in Fourth Amendment search and seizure law. The Driver confronts the suspecting officer by challenging the legality of the stop and subsequent search.
This is perhaps the most common scenario in my criminal practice. Traffic stops and police authority to search incident to those stops are frequently debated and much litigated issues in the criminal justice system. In the last 10 years, many clients and potential clients have cited this song in their belief that the police have violated their rights. In this article I'll take a quick look at some of the legal claims jay-Z makes in this song.
This article does not provide legal advice. Just my thoughts on the song. Accordingly no one should rely on the following in making important legal decisions
The legal issues in the song are related to the Fourth Amendment's protections against illegal searches and seizure. To deter police misconduct, the U.S. Supreme Court created the exclusionary rule. This rule requires courts to suppress or exclude evidence if government agents seized it in violation of a person's rights against illegal searches or seizure. As a result, if the officer made constitutional mistakes, a good lawyer can beat the case.
Let's take a look at the second verse of the song:
The year is '94 and in my trunk is raw
In my rear view mirror is the mother fuck*n' law
I got two choices y'all pull over the car or
Bounce on the devil put the pedal to the floor
Now I ain't tryin' to see no highway chase with Jake
Plus I got a few dollars I can fight the case
So I...pull over to the side of the road
And I heard "Son do you know why I'm stoppin' you for?"
In saying that he has raw in his trunk Jay-z means that he knows that has uncut cocaine or cocaine base in the trunk. In 1994, federal sentencing guidelines for drug offenses (1) were mandatory and (2) maintained punishments that were exponentially higher for cocaine base than regular powder cocaine. Some of that law has changed. Still, even with new laws or in state court, the Driver in the song is facing years of time if he goes down. Knowing he's in a bad spot The Driver has a choice to elude or pull over.
GOOD ADVICE : Fleeing a police traffic stop is rarely a good move. By saying that he's got a few dollars to fight the case, Jay indicates that he has money to retain a good lawyer. Hopefully that money is not on his pocket, in the car or stored near illegal substances. If the money is in the car with drugs, the police will almost certainly seize the money pursuant to an asset forfeiture process making the money unavailable to use to retain a lawyer.
If a police stop is illegal a lawyer can suppress all evidence seized as a result of the bad stop. However, if an individual tries to elude police he is committing a new crime. Once a fleeing person is caught and arrested the flight alone creates legal suspicion and essentially removes the attorney's ability to later challenge the reason for the traffic stop. Here Jay-Z gives good advice. Stop the car and let your paid lawyer fight the case in court.
Cause I'm young and I'm black and my hat's real low
Or do I look like a mind reader sir? I don't know
Am I under arrest or should I guess some mo'?
Well you was doin fifty-five in the fifty-four
GOOD ADVICE: It's not a good idea to directly accuse a police officer of racial profiling. If an officer is guilty of profiling he will not admit to it merely because a driver accuses him. A lawyer will need to prove that in court. However, during a police encounter it never helps to admit you're committing a offense. So, it is an excellent response to say "I don't know" when an officer asks if a driver knows why he has been stopped.
it is also a brilliant move for the driver to ask an officer if he under arrest or free to leave. If the officer says that a driver is under arrest, the officer must read the Driver his Miranda rights at that time. If the officer says a driver is free to leave, the driver should get the ----- out of there. However if the officer says that a driver cannot leave, the driver should obey. Also, even it the driver is not under a full custodial arrest, in a routine traffic stop a police officer may "detain" the driver long enough to conduct additional investigation or issue a citation.
In the song, the officer responds that Jay-Z was speeding. An officer is allowed to make a traffic stop without violating the Fourth Amendment anytime he observes a traffic violation committed in his presence regardless of how petty the stop appears to be. Also, even if the officer does not subsequently write a ticket for the alleged violation a judge may still rule that an officer had reasonable suspicion for a traffic stop. Although it seems unfair (and there probably aren't any 54 MPH speed traps), the officer in the song isn't necessarily violating the law.
License and registration and step out of the car
Are you carryin' a weapon on you? I know a lot of you are
I ain't steppin' out of shit, all my papers legit
Well do you mind if I look around the car a little bit?
BAD ADVICE : Once a car has been lawfully detained for a traffic violation, the police officer may order the driver to get out of the vehicle. Jay is wrong here. The Driver has to provide his credentials and he has get out of the car.
The accusations of the weapons possession imply that the officer believes he has a reasonable belief that the driver is armed and dangerous. If the officer can articulate those reasons, the officer may be justified in patting down the driver and searching areas of the car within the driver's reach for officer safety. This includes the glove compartment. The "I know a lot of you are" comment implies that the search was made in improper generalizations rather than articulable suspicion. However, an officer is not likely to acknowledge that statement in court.
GOOD ADVICE: The officer asks for permission to search. Civilians wrongfully think that denial of permission will unilaterally create sufficient suspicion. In many instances officers ask for permission to search because they lack legal justification to search. Never give the police permission to search. The driver here makes the right choice by not giving consent.to a driver could simply state, "I do not give consent for you to search me or my vehicle."
Well my glove compartment is locked, so is the trunk in the back
And I know my rights, so you gon' need a warrant for that
Aren't you sharp as a tack, you should try out
For lawyer or somethin', somebody important or somethin'
VERY BAD ADVICE : Here Jay-z is completely wrong. There is no warrant requirement for car searches. A locked trunk or glove compartment doesn't protect contraband. With car searches, the officer can conduct a warrantless search any place that he has probable cause to believe contain evidence of a crime. For example, if the officer smells marijuana he can look in any area (purses, glove compartment, trunk) that could contain narcotics. Still the officer needs consent or probable cause that another crime is occurring to go into the trunk.
Child I ain't passed the bar, but I know a little bit
Enough that you won't illegally search my shit
Well we'll see how smart you are when the canine comes
I got 99 problems, but a bitch ain't one.
Here, the officer tries to get the last laugh by holding the driver until a canine unit arrives. This tactic might hold up. Canine cases can be tough to suppress. Recent Supreme Court cases give police growing freedom to use drug dogs. A drug dog sniff does not count as a "search," for purposes of the Fourth Amendment. The court holds that people don't have privacy right not to be sniffed for contraband. As a result, an officer may use a drug dog even without probable cause.
Although detention for a drug dog sniff may not be an illegal search, an effective lawyer can challenge the seizure. Federal appellate cases have held that after issuing a traffic ticket police cannot continue to hold a person for an extended period of time for the purpose of a drug dog sniff. In the 99 problems song, the validity of the arrest likely depends on the timing. If the drug dog arrives soon enough and alerts to the car, Jay-Z is going to have another problem.
CONCLUSION: Hova is wrong. Cops do not need a warrant to search your trunk and glove compartment. The validity of most car searches and seizures turns on the issues of reasonable suspicion for a weapons search or probable cause for a more extensive search. Jay-Z does properly advise his listener that he should not give permission to search, resist the stop or say anything that incriminates himself. The driver should never give police an easy excuse for search by using or having drug paraphernalia in the car. This doesn't mean that I don't like Jay-Z or his music. it simply means that I wouldn't hire him to represent me in drug distribution case.