It’s hard to believe, but Jay-Z’s 99 Problems turns 10 years old this month. The song, which was ranked #2 on Rolling Stone’s top 100 songs of the ’00s, recounts a real-life anecdote from when the rapper was stopped by police in 1994 while transporting cocaine in a secret compartment in the sunroof of his car.
To commemorate the anniversary, Caleb Mason, author of “Jay-Z’s 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps“, agreed to provide some insights about his essay and what Jay-Z’s song has to say about the criminal justice system.
What inspired your essay? Are you a Jay-Z fan?
“As it says, it was a teaching tool for my class, to help them learn the constitutional rules governing searches. Michael Morse and Jennifer Duval, I believe, suggested it. I’m not an academic and haven’t been teaching for awhile, and have forgotten 99% of their names, sadly, but those two I remember. Duval I haven’t kept up with, but Morse I still talk to. He’s a finalist for a DA position here in LA.”
Are there other examples of things that pop culture gets wrong about criminal justice that you think are important to correct?
“Yes. Lots. Some shows do better than others, of course. I don’t watch enough to really give you a catalogue, but I think the original Law and Order was pretty good on the law. Obviously it compressed the hell out of the process, but at least they gave you those “Trial Part 43” cues so you could infer that there was a lot going on that you didn’t see. I am currently pitching a pilot for a lawyer/doctor-themed drama, and we will get everything right! (My co-author is a doctor.)”
Do you have any plans to write about any more legal-themed lyrics? Maybe do a series?
“Sure! When I was teaching I had some others that I used. And it would certainly be fun to write more essays like this. Which reminds me, you probably don’t know that the one vacation I’ve taken in probably five years happened to be kayaking in Alaska in July of 2012, which happened to be the week the piece went crazy on the internet. I was out of contact for eight days, and then I came back to find I’d missed an invitation to be on Morning Edition, as well as a publishing agent who wanted to talk about a book of law-and-culture essays. Fortune being what it is (fleeting, fickle, whatever), neither one was interested in me anymore when I called back. I shouldn’t say not interested– they were polite and friendly, but I wasn’t the flavor of the month anymore. I did make Lawyer Hottie of the Week or something for one of those Above-the-Law-clone websites, but I’d rather have the book deal. That’s all a long way of saying yes, that sounds like a great idea.”
Did this idea ever make it into your Crim Pro class before publishing? It would have been a difficult exam problem.
“Yes. I collaborated with my class throughout the writing process.”
Now that you are back in practice, have you given the article to any of your clients?
“I don’t do much criminal work now, and what I do is white-collar stuff.”
Have clients come to you for advice after reading the article? You provide your phone number in the final footnote – have you received any phone calls as a result?
“I get a lot of calls. I’m mostly surprised at how positive the feedback is across the political/legal spectrum. One week I had the Salt Lake City FBI field office and the Oklahoma ACLU office both calling asking for permission to use it in trainings. I would estimate that it’s been used in several dozen professional training programs that I’m aware of. I’m in the middle of a trial now, and the other day one of the deputies working the courthouse came up to introduce herself and tell me that they’d used it in her classes at the Academy. I am thrilled and delighted that legal professionals find it useful. That’s the highest praise a piece of legal writing can have.”
Could you give us some traffic stop advice (in the form of a short rap, of course)?
“There’s only one piece of advice, and it’s easy, but people forget it so easily. Keep your mouth shut, and call a lawyer.”
What is the most interesting piece of feedback you’ve received from your article?
“I’ve gotten a ton of feedback on the various state laws governing recording of police-citizen encounters. (You may recall I cautioned that in a number of states, recording the stop might violate state law.) And the federal constitutional law has developed a bit here, too. I think in a couple more years we may have a definitive Supreme Court case on whether you have a First Amendment right to record the activities of police in public (and I think the answer will be yes).”
Any idea if recording of police-citizen encounters is common practice, and whether it causes any controversy? Does the recording have to be concealed or can it be outright in the officer’s face? It seems like that could make for a very awkward situation and could be distracting for police officers.
“See answer above. As for policy, my view is that police work should be recorded. This should be done via body cameras worn by the officers. The public should do it, too, and as noted above, it’s likely a First Amendment right.”
In states that require two-party consent, what is the reasoning for requiring the officer’s consent in a traffic stop to film it and what do you think that reasoning? Furthermore, in those states, if the consent is two-way, does the officer need to get the driver’s consent as well before recording the interaction?
“See above. I suggest openly recording the stop, and if the officer tells you you can’t, make a record of it and get a lawyer.”
In your paper you advise police to arrest for the traffic violation and impound the vehicle. You cite a Supreme Court case that upholds such arrests under the Fourth Amendment. I was just curious if you knew how many states actually had laws in place allowing for arrests for minor traffic violations? If state laws did not address these types of arrests, would the arrests nonetheless be okay since they are constitutional or do they also need to be specifically authorized under a state statute? Do these arrests happen often and has there been any backlash to such laws that you are aware of? It seems like a lot of power in the hands of the police.
“Virginia v. Moore. Supreme Court case. Interesting case. Answers all your questions. Here’s the rule: sure, some states do have state laws specifically prohibiting arrest for minor traffic violations. But unless the state law *also* has an explicit provision specifying a suppression remedy, there’s no implied suppression remedy under the Fourth Amendment. The Fourth Amendment, says the Court, does not incorporate individual state statutory law. It permits arrest for any offense based on probable cause. So if you are on a legislative committee and want to draft a “no arrest for minor traffic infractions” law, you should put the suppression remedy right there in the law. (Then suppression would come under state law, not the Fourth Amendment. Of course, in a federal prosecution– e.g. a referral to federal court for a gun or drug charge– your perp is still out of luck.)”
You mention probable cause several times throughout the article (in fact, you say that Jay-Z should have replaced the line “you go’n need a warrant for that” with “you’ll need some p.c. for that”) – is there a bare minimum for probable cause? If so, what is it?
“Well, that’s your Crim Pro course, isn’t it?”
Along this same lines, would refusing an officer’s order to step out of the vehicle be enough for probable cause?
“Almost certainly, in front of nine judges out of ten, including me. The next question, though, is “probable cause for what offense”? Is it probable cause to search the car for drugs? Probably not on it’s own.”
You mention racial profiling and biases by law enforcement when it comes to drug busts and prosecutions – what is your opinion of sentencing guidelines that punish crack cocaine offenses (typically done black and other racial minority offenders) harsher than powder cocaine offenses (typically done by white offenders)?
“I’m glad they’re finally going away, albeit slowly. Should have been much quicker, and they should never have been written that way. AG Holder is doing great work on this.”
Did you ever hear from Jay-Z on anyone affiliated with him?
“No, but I’m easy to find.”