Grateful Dead's former lyricist finds tough fight against searches

[R.A. Hettinga]

<http://www.contracostatimes.com/mld/cctimes/news/10453495.htm?template=contentModules/printstory.jsp>

Posted on Sun, Dec. 19, 2004

Grateful Dead's former lyricist finds tough fight against searches

By Mary Anne Ostrom


John Perry Barlow, former Grateful Dead lyricist and current cyber-rights
activist, had hoped to use his arrest on drug charges to shed light on how
the Transportation Security Administration conducts its baggage searches.

While most defendants caught by airport security with small amounts of
contraband typically plead guilty to misdemeanor charges, Barlow decided to
fight. He was arrested after a baggage screener at San Francisco
International Airport in 2003 found small amounts of marijuana and
hallucinogens in an Advil bottle in his checked luggage. He was immediately
pulled off a Delta flight and handcuffed. He spent all day in San Mateo
County Jail.

But Judge Harry Papadakis, a retired Fresno judge, ruled Wednesday that the
search of Barlow's checked luggage was reasonable under the U.S.
Constitution, and now he must face trial next spring on the charges in San
Mateo Superior Court.

"I'm distressed," Barlow said after the ruling, calling it a blow to civil
rights. "What the judge is saying is that when you are going to travel, you
make yourself subject to any search no matter how thorough; the search can
be as wide as possible."

Barlow had claimed he was the subject of an unlawful search and seizure
under the Fourth Amendment; the screener can look in checked baggage for
explosives and incendiary devices that might be used to blow up an
airplane, his attorney argued, but not drugs.

It was a pair of laser gloves Barlow used at the Burning Man festival that
initially caught the baggage screener's attention when an X-ray machine
showed wires, electrodes and batteries in checked luggage.

Barlow's attorney had tried to convince the judge that his client's case
would expose the federal agency's baggage check policies as nothing but "a
stalking horse" for much broader criminal investigations. The defense did
elicit testimony from airport police that they work closely with the
Transportation Security Administration, Drug Enforcement Agency and baggage
screening contractors to act on drug tips, but that's not what led to
Barlow's arrest.

The screener, Sandra Ramos, testified Wednesday that when she opened up
Barlow's hanging bag, she unzipped one of two compartments. Instead of
finding the gloves, she found a large bottle of Advil. She told prosecutors
she opened the bottle and dumped out the pills because it seemed much
heavier than a normal bottle should be and possibly could have contained
explosive material. And that's when she found the marijuana -- less than a
quarter of an ounce -- and some fungus-like material that turned out to be
hallucinogenic mushrooms. She then unzipped the other side and found the
gloves.

Law enforcement officials also identified the club drug ketamine and
hypodermic needles in the luggage and later found Ecstasy in Barlow's
wallet.

Barlow is facing five misdemeanor counts. He has said the marijuana was for
medicinal purposes and that the needles were used to inject hay fever
medication.

But from the start of Wednesday's hearing, the key issue was not drugs: It
was how much testimony on Transportation Security Administration procedures
would be allowed.

San Mateo County Deputy District Attorney Aaron Fitzgerald argued that
Barlow "was on a fishing expedition" in his attempt to open up the
government's policies and procedures. Two government attorneys representing
the federal agency sat directly behind Fitzgerald, arguing several times
that witnesses could not answer defense questions because information such
as how X-ray equipment is used and how workers are trained could "make it
easier for terrorists." The judge sided with the prosecution at nearly
every turn.

As co-founder of the Electronic Frontier Foundation, Barlow has never been
shy about condemning the government for what he sees as restricting
freedoms. Wednesday's hearing drew more than half a dozen cyber activists.

During a hearing recess, before the ruling, Barlow told reporters, "If you
are going to have a free country, you certainly have to understand the
circumstances under which you can be searched and detained."

As for the laser gloves, Barlow showed up in court with them Wednesday. In
fact, Barlow packed them in the same suitcase that had been the subject of
the search.

"The gloves made it through court security today," he said. "Nobody said a
thing."

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R. A. Hettinga <mailto: rah at ibuc.com>
The Internet Bearer Underwriting Corporation <http://www.ibuc.com/>
44 Farquhar Street, Boston, MA 02131 USA
"... however it may deserve respect for its usefulness and antiquity,
[predicting the end of the world] has not been found agreeable to
experience." -- Edward Gibbon, 'Decline and Fall of the Roman Empire'