Jay-Z is one of the most influential artists of the past 20 years. As a rap artist, his social and political influence is unrivaled. As a producer, rapper, entrepreneur, actor and philanthropist his success transcends international boundaries. His net worth is said to be in upwards of $450 million. However, this blog is not about Jay-Z, specifically. It's about a scenario played out in Jay-Z's hit song "99 Problems." I decided to look at this scenario from a criminal law standpoint. More so, this blog is about a type of police encounter that happens every day in America. If you haven't watched the video (or heard the song) watch it here before you read the rest of this blog so you have a general idea of what we are talking about. WARNING: there are explicit lyrics in this song.
We'll focus on the second verse of the song where Jay-Z is pulled over by the police in 1994. It's important to note that the meaning of this song was widely debated; however, it was cleared up in Jay-Z's book, Decoded. Buy the book here. Jay-Z wrote that in 1994 he was pulled over by police while carrying cocaine in a secret compartment in his sunroof. Jay-Z refused to let the police search the car and the police called for the drug dogs. However, the dogs never showed up and the police had to let Jay-Z go. Moments after he drove away, he wrote that he saw a police car with the dogs drive by.
Disclaimer: I am not telling you to break the law or even how to break the law. In fact, here's some free legal advice: DO NOT BREAK THE LAW. With that said, let's have some fun.
Jay-Z says that he has 99 problems. Well, let's just take a look at this. So, assume that this all went down in Texas. Let's set the scene…
The year's '94 and my trunk is raw
In my rear view mirror is the mother fuckin' law
I got two choices y'all pull over the car or (hmmm)
Bounce on the double put the pedal to the floor
He makes a good choice here and pulls over. Running from the police is just simply a bad idea. One, you can't outrun radio. Two, Texas Penel Code §38.04 Evading Arrest or Detention with a Motor Vehicle is a State Jail Felony that is punishable at a minimum of 180 days to 2 years and/or up to a $10,000 fine and an automatic one year driver's license suspension (Transp §§521.341(2), 521343(a), (b)).
But what's more important than Evading Arrest or Detention with a Motor Vehicle is what's going on in his trunk. In the video, you see the police officer at Jay-Z's car window and as the camera view rolls away it shows an x-ray view of Jay-Z's trunk. It looks like there are at least 4 briefcases in the trunk and that's plenty of room for a lot of cocaine (easily 400 grams worth). In Texas, cocaine falls in Penalty Group 1 and even though this amount could be charged as a possession, I'd bet that it would be charged under H&SC §481.112, Delivery of a Control Substance, 400 grams or more with a penalty of 15 to 99 years or life in prison, and a $250,000 maximum fine. Now, if he would have "bounced on the double and put the pedal to the floor," the police would have certainly chased him. When the police caught him they would have arrested him and impounded the car. Before the car was towed (or at the station), the police would most likely have conducted an inventory search of the vehicle. Inventory searches are allowed under both the 4th Amendment and Article I §9 of the Texas Constitution (if conducted under a lawful impound). If there is a reasonable connection between the crime and Jay-Z's car it will most likely be impounded. Police departments usually have impound procedures in place for securing and inventorying what is in the car. In fact, an inventory search can only be done, without a warrant, if the standard inventory procedure is followed and if it's not being used as a pretext for an investigation. So, as long as the police followed their own impound procedure they would be inside Jay-Z's car inventorying everything that's in the car. At this point, we are getting a little nervous because of what's in the briefcases. So, if Jay-Z ran and the police caught him then the police would know that there are briefcases in the trunk. So, the question becomes, can they open those briefcases? Let's address that a little later. So, what's Jay-Z up to now…?
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
Again, Jay-Z makes another great choice – he will hire a lawyer to fight his case in court. At this moment in time, the police officer (Jake) is in charge and will make all the decisions (at least for right now). So, save the argument for the courtroom and be polite. Importantly, even though you have a constitutional right to represent yourself in a criminal case, I can't think of any situation where you would try to do so. Hire a qualified criminal defense attorney immediately. It's just way too important to try and go it alone. Man, no wonder Jay-Z is rich, he's smart! So, what's next…
I heard "Son do you know why I'm stoppin' you for?"
Cause I'm young and I'm black and my hats real low?
Do I look like a mind reader sir, I don't know
Am I under arrest or should I guess some mo'?
Whenever I hear that an officer asked my client, "do you know why I stopped you?" I immediately think of the scene in the movie Liar Liar where Jim Carey is stopped by the cop and asked this infamous question and then Carey belts out a hundred reasons why he should be taken to jail. Anyway, back on topic. Jay-Z has identified a real problem in America – he may have been stopped simply for being black. Or, at the least his race came into play because as we will see next the officer may have a legal reason for pulling Jay-Z over…
"Well you was doin fifty-five in a fifty-fo' "
"License and registration and step out of the car"
"Are you carryin' a weapon on you I know a lot of you are"
The officer says he stopped Jay-Z for speeding. Notice that Jay-Z says he's doing 55 in a 54 (I couldn't find a single place where there is a 54 mile per hour speed limit, so I'll assume that it just sounded better lyrically to say it that way.) So the question is, can you be pulled over and ticketed for doing 1 mile over the speed limit? Answer: Yes. Moving on, this situation is what's known as a pre-text stop. Another example of a pre-text stop is where an officer watches a person leave a known drug area, follows the person until the person commits a minor traffic violation, then stops the car with the hopes that the traffic stop will lead to the officer seeing a greater offense that would justify a search or arrest of the driver. Even if the officer admits to having other nefarious reasons for stopping the car, as long as there is an objective basis regarding the traffic violation (e.g. speeding) the stop will still be considered legal.
As far as the weapon question, usually it comes in the form of "are there any weapons in the car" coupled with "is there anything illegal in the car I need to know about?" Jay-Z doesn't blurt out that there is cocaine in the trunk. He remains calm. This is important because you'd be surprised in how many people say something like, "yeah, I have some marijuana on me." Now, you're going to get pulled from the car, searched, arrested and charged with a crime. Remember, you have a constitutional right to remain silent and you do not have to incriminate yourself. Simply refuse to answer. DO NOT refuse to give your name and DO NOT give a false name, click here to read why. Police officers are not in the business of clearing your good name. As far complying with the officer's demand to step out of the car let's see how Jay-Z handled it…
I ain't steppin out of shit all my paper's legit
"Well, do you mind if I look round the car a little bit?"
Well my glove compartment is locked so are 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 some type of lawyer or something'?"
"Or somebody important or somethin'?"
Nah, I ain't pass the bar but i know a little bit
Enough that you won't illegally search my shit
Telling a police officer that you are not getting out of the car when they order you out may not be the best idea, even if your papers are legit. On that note, if Jay-Z didn't have a license or insurance, or the plates were bad, then he'd be arrested, the car could be impounded and then the police are legally one step closer to being in the car with the drugs. This would be bad for Jay-Z.
When an officer has made a valid traffic stop (e.g., speeding), they are entitled to take sufficient measures to guarantee officers safety. In other words, the officer gets to search Jay-Z and the immediate area of the car for weapons. However, everything must be done under the reasonable test within the 4th Amendment. The officer must have reasonable and articulable suspicion that something's up, outside of Jay-Z being young and black with his hat real low. Things like a high-crime area, nervous demeanor and appearance, furtive moments, etc., if believed, would allow the officer to pull Jay-Z out, search him and any passengers, and search the passenger compartment of the car for weapons. Basically, the law allows an officer to pat down a person if that officer has reasonable suspicion that the person has a weapon. What's reasonable suspicion? Well, that remains to be seen and would be addressed in court. Just note that if an officer orders you out of the car on a lawful traffic stop you should do it. As far as Jay-Z's case is concerned the officer doesn't push it and allows him to remain in the car. Remember, the law in Texas requires you to get out of the car if asked to do so. Fight it in court and not at the scene because you'll lose out there for sure.
Next issue is consent to search. Not much here other than if they ask and you say yes, then they are going to search and it will be a legal search. Whatever they find will be used against you in court. Be like Jay-Z and say no. Do you have to consent to a search? No. So, never consent to a search.
Now, here's where things could get really bad. Even though Article 1, §9 of the Texas Constitution provides a privacy interest in closed containers in vehicles and provides greater protection than the Fourth Amendment does, the officer may still be able to open the briefcases. Jay-Z says to the cop, "[w]ell my glove compartment is locked so are the trunk in the back. And I know my rights so you gon' need a warrant for that." Wrong. This whole process is about probable cause. If this were a true speeding traffic stop with no other indications of potential wrong doing, then there is an argument that any search of the car is unreasonable. In the inventory search mentioned above, arguably the trunk could be searched, but the briefcases, without other indications, could not be opened without a warrant. However, if the police have probable cause to believe that a container in a car contains contraband or evidence of a crime, then that container may be searched without a warrant. Confused yet?
At this point in Jay-Z's case, I do not see probable cause for the officer to search anything. He didn't run from the cops, he has a valid driver's license, insurance, and registration. The plates are good, the inspection sticker is good, he doesn't admit to a crime and doesn't consent to a search. Being young and black with a hat real low isn't enough to search his car.
But remember that the officer did ask him to get out of the car and Jay-Z said no. This could be a basis for arrest under Texas Penal Code §38.03 Resisting Arrest, Search, or Transportation. Where a person intentionally prevents or obstructs an officer from effecting a search by using force against the officer. In this sense, the force could simply be the officer asking and Jay-Z refusing, then the officer opening the door and Jay-Z not getting out. This is a Class A Misdemeanor punishable up to 1 year in jail and a fine of up to $4000. This alone may get Jay-Z arrested, but I don't think that would be enough to get into the trunk. As I mentioned above, the officer didn't order him out so here it's a non-issue but Jay-Z is not out of hot water yet…
"We'll see how smart you are when the K9 come"
Using dogs to sniff around the outside of a car is not a 4th Amendment violation. As long as the traffic stop is legal and the detention does not exceed the time permitted under the circumstances, no expectation of privacy is violated. This is not to say that using drug dogs is completely immune to a court challenge. If the detention exceeds the time permitted for temporary detentions then use of drug dogs may be a violation of the 4th Amendment. The focus, however, is more on when there is a seizure rather than whether there is a search. As always, this is a very fact specific analysis.
So, how does this concept apply to Jay-Z? As I said above, I don't see any legal basis for a search of Jay-Z's car. He was speeding, barely. However, if there is a K-9 unit close (or if a K-9 Unit had stopped Jay-Z), then he would have a serious problem because the dog could be walked around the outside of his car without needing probable cause. If the dogs alert to the presence of drugs, then that's when things would get real bad, real quick for Jay-Z. We don't see anything happen in verse 2 that suggests how long he is detained or whether or not the dogs actually show up. So, at this point in the video, the question becomes how long it will take to get the drug dogs to the traffic stop. There is no specific or set time frame. It will be looked at under the circumstances of this specific stop. If the dogs show, then Jay-Z is going for a ride to the station with a pretty hefty charge hanging over his head. If the dogs don't show, then he'll probably be let go (which is what actually happened in real life as Jay-Z wrote in his book, Decoded). This discussion has revolved around the tenets of the 4th Amendment as it would be applied in Texas given the seemingly expanded protections of the Texas Constitution. I'd have to say that an inventory search, 4th Amendment violation argument in Texas would have to encompass the history of how Texas began to afford more protection to its citizens and how Texas has begun to roll back those protections thus falling in line with the common understanding of the 4th Amendment.
From a practical standpoint, understanding your rights and knowing how to act in a situation like this is the best defense against an unconstitutional search and/or seizure. Being polite to the police officer (whether or not it's warranted) is the best way to handle a traffic stop. But remember that being polite doesn't mean consenting to a search or blurting out something that will be used against you in court. Arguably, the courts have rolled back the protections of the past. On a daily basis, law enforcement is granted ever-expanding search and seizure powers at every turn. This aggressive expansion of the police state is the very reason why it is important to know your rights, exercise your rights and stay vigilant. It is not about making sure the bad guy goes free. It's about holding the government's feet to the fire and making sure that they are held to the very standards that make up this great nation. One of my favorite quotes comes from Albert Einstein, "The strength of the Constitution lies entirely in the determination of each citizen to defend it. Only if every single citizen feels duty bound to do his share in this defense are the constitutional rights secure."
And this is what the Average Joe Ought to Know!
I got 99 problems but a bitch ain't one…hit me!