COMMENTARY

THE FOURTH AMENDMENT
By Neal Shaffer


It’s a cottage industry for the advocacy set: such-and-such is the greatest threat since…whatever…to freedom. Cigarettes, sex, Mapplethorpe, rock music, Bill Clinton—all have, at one time or another, been branded as the one thing that, if left unchecked, would finally bring American Democracy down. Yet, surely even the doomsday prophets recognize that no one entity or organization is going to bring anything down. Americans, despite the cynical urge to say they won’t, will not stand for anybody going too far. But there is a danger, a very significant one, and it lies in the fact that through a surreptitious combination of lawmaking and judicial emasculation, the following words are quickly losing their meaning:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Fourth Amendment to the Constitution…it sits relatively quietly behind religion, guns and the thorny matter of whether you have to let soldiers crash at your place. No one has forgotten the First or Second Amendments; indeed, hardly a month goes by without one or both of these not in the news. The Fourth is more mysterious, its protections less politically charged. But the interest of everyday folks in understanding and preserving it transcends all political and social boundaries. Fourth Amendment protections are the bedrock tenets of liberty, and if they were to be completely eviscerated, then the rest of the Bill of Rights would soon follow.

If rewritten in today’s English, the Fourth Amendment would read something like this:

No agent of the government has the right to search or seize a person, that person’s dwelling, or any of that person’s possessions without good reason. To prove that the reason is good it must be presented and proved under oath before a judge, and the presentation must include a detailed description of what is to be searched and/or seized, before the search takes place.

Although this is not an ambiguous thing, if there were any initial doubts about the broad-based intent of Fourth Amendment protections, they were silenced in the 1886 case Boyd v. United States. This case involved a customs statute that required importers to either produce documents and records on demand or have their goods subject to seizure. In a decisiåon striking down the statute, Justice Bradley declared, "It is not the breaking of a man’s doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense." Justice Bradley’s logic, which parallels that of the Amendment itself, is that due process, and due process only, is the only thing that justifies suspension of Fourth Amendment protections. Thus, any warrant-less search is illegal.

The Supreme Court, up until relatively recently, agreed with this reading of the Amendment. In deciding the landmark 1961 case Mapp v. Ohio, the Court adopted the "exclusionary rule," which held that evidence obtained unlawfully could not be used against a defendant in a criminal trial. The decision strengthened the Amendment and further clarified our protections under it. Subsequent decisions, however, have systematically gutted both the letter and the spirit of the words.

The first such case was South Dakota v. Opperman (1976), which involved the search of an impounded vehicle. A man guilty of no offense greater than illegal parking had his vehicle searched, whereupon a small quantity of marijuana was found. In deciding the case, the Court stated that the protection of privacy in one’s car is far less than can be expected in the home and, as such, the search was legal.

Three years later, the Court backtracked…sort of. In Delaware v. Prouse, the Court held that random stops of motorists not participating in any illegal activity constituted an unreasonable seizure and were not permissible. But just to leave the door open to continued harassment, the Justices suggested the random checkpoint as a possible alternative, saying in effect that it isn’t unreasonable to stop everybody. The states naturally seized on this, and all challenges to the practice have been rejected.

The Court went even further in United States v. Ross (1982), declaring that police have the power to search any vehicle they have legally stopped, as long as there is probable cause that the vehicle contains contraband. Perhaps it was bound to happen, but this liberal interpretation of "probable cause" is at the heart of the problem.

Imagine the following scenario: a VW bus is stopped for having a busted taillight, and the driver is ordered out of the car. The cop says he smells marijuana. The driver says he has none. That the cop "smelled" it is legal probable cause for a search. A small amount that the driver didn’t even know he had is found under the seat somewhere, and the man is arrested. It can, and does, happen.

For many years, the courts were reluctant to extend their savage logic to the home and the person, arguing that a car is not an "effect." (It is interesting, then, to note that the Amendment’s original language included the word "property.") But in United States v. Leon (1984), the Court created a "good faith" exception to the exclusionary rule, holding that if a warrant was obtained on "good faith" then all evidence seized during the subsequent search is valid, even if the warrant is not. In other words, if the police really, really believe that there’s something bad going on, then they can get a warrant and go look for it, regardless of whether they actually have a good reason. Furthermore, the "open field" doctrine (Oliver v. United States, 1984) holds that anything visible to the naked eye, even if it’s on private property, is subject to a search simply because it’s not hidden. The application of this clause now extends to homes, cars and the person.

The worst may be yet to come. Just this year, in Atwater v. City of Lago Vista (TX), the Court held that a person can be arrested and detained for any violation of the law, even if the violation is punishable only by a fine. The case involved a woman who was arrested and sent to jail for not wearing her seatbelt, as her children watched on by the side of the road. The implications of this decision are, without hyperbole, staggering. Certain crimes, by virtue of their negligible effect on public safety, do not warrant detention. Of these crimes, almost every person has, at one time or another, been guilty. Up until now, it has been understood that being guilty of, say, jaywalking was really no big deal. And insofar as that offense is still technically punishable only by a fine, it is not now a bigger deal than it ever was. But the Atwater decision grants police sweeping powers to trample on Fourth Amendment protections. Any person whom the police suspect of wrongdoing, no matter how twisted the logic they employ to decide such, can now be arrested for committing a minor offense.

Consider the implications of this in a real-life situation. Protesters who have gathered for a civil demonstration, such as those held recently in Seattle and Washington, DC to protest globalization, will by nature be guilty of minor offenses such as jaywalking, not obeying pedestrian traffic laws, etc. The police in any given city have now been granted the power to suppress said demonstration on legal grounds with no messy free speech concerns. By extension, any person expressing "undesirable" political beliefs can be harassed to almost no end, unless he or she somehow manages to refrain at all times from breaking even the most insignificant laws.

It is easy to see, then, how utterly important Fourth Amendment protections are to maintaining the integrity of free speech, religion and assembly. And yet rarely, if ever, does the issue come up. While civil libertarians and common-good hell raisers have been fighting the good fight on First Amendment issues, the police and the courts have quietly used the Fourth Amendment as an end run around a fight they know they can’t win.

Still, all hope is not lost. In order to right the ship, it is important that people remember what rights they still have when confronted with police intervention. The courts have consistently refused to create a Miranda-like requirement that police inform citizens of their right to refuse a search. Yet in most cases, consent must still be given. It never should be. Every time the police intimidate an innocent person into consenting to a search of their car, home, or person, a small battle is lost. Guilt is not the issue in these cases. The matter at hand is that the police shouldn’t be asking in the first place, and they should be told as much, albeit politely.

"Am I under arrest?"

"No."

"Then I’ll be on my way, thank you."