The Demise of The Fourth Amendment

From Boogai:

The Demise of the Fourth AmendmentJune 21, 2010


Congress
Constitution By John White­head

The Ruther­ford Institute



The Fourth amend­ment states,



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.

In pre-revolution Colo­nial days, British author­i­ties exer­cised “writs of assis­tance” when they searched a cit­i­zens home, busi­ness or belong­ings. The writs did not expire and were even trans­fer­able, and were used as a means of polit­ical harass­ment; they were greatly hated by colo­nial res­i­dents. Author­i­ties who per­formed the searches were not held liable for any damage they caused. This back­ground led the way to enact the Fourth Amend­ment. Later, the Four­teenth Amend­ment (Sec­tion 1) imposed the Fourth Amend­ment on the indi­vidual states: “No State shall make or enforce any law which shall abridge the priv­i­leges or immu­ni­ties of cit­i­zens of the United States; nor shall any State deprive any person of life, lib­erty, or prop­erty, without due process of law; nor deny to any person within its juris­dic­tion the equal pro­tec­tion of the laws.”



“Soon as they hit the window, I hit the floor and went to reach for my grand­daughter. I seen the light leave out her eyes. I knew she was dead. She had blood coming out of her mouth. Lord Jesus, I ain’t never seen nothing like that in my life.” — Mertilla Jones, Aiyana’s grandmother



It was 12:40 am on Sunday, May 16, 2010. Twenty-five-year-old Charles Jones had just gone to bed after cov­ering his 7-year-old daughter Aiyana with her favorite blanket. The little girl was asleep on the living room sofa, which was posi­tioned under a window. Her grand­mother was nearby. Sud­denly, the silence of the night was shat­tered by a flash grenade thrown through the living room window, fol­lowed by the sounds of police bursting into the apart­ment and a gun going off. Rushing into the room, Charles found him­self tackled by police and forced to lie on the floor, his face in a pool of blood. His daughter Aiyana’s blood.



It would be hours before Charles would be informed that his daughter was dead. According to news reports, the little girl was shot in the neck by the lead officer’s gun after he col­lided with Aiyana’s grand­mother during a police raid gone awry. The 34-year-old sus­pect the police had been looking for would later be found during a search of the building. Iron­i­cally, a camera crew shad­owing the police SWAT team for the reality tele­vi­sion show “The First 48″ (cop shows are among the most pop­ular of the tele­vi­sion reality shows) caught the unfolding tragedy on film.



As far-fetched as what hap­pened to the Joneses may sound, they are not the only Amer­ican family to suffer the dev­as­tating con­se­quences of a police raid gone awry. According to Radley Balko’s Overkill: The Rise of Para­mil­i­tary Police Raids in America (2006), over 40,000 SWAT team raids are car­ried out annu­ally in this country, striking at the very core of our con­sti­tu­tional free­doms. As Balko writes, “There’s an old Cold War saying com­monly attrib­uted to Win­ston Churchill…that goes, ‘Democ­racy means that when there’s a knock on the door at 3 a.m., it’s prob­ably the milkman.’ The idea is that free soci­eties don’t send armed gov­ern­ment agents dressed in black to raid the pri­vate homes of cit­i­zens for polit­ical crimes.”



Regret­tably, we live in an age where police raids are on the rise, modern police sur­veil­lance is more inva­sive than ever, and the gov­ern­ment has unfet­tered access into the most pri­vate mat­ters of our lives. Thus, the reality we must con­tend with is one in which the Fourth Amend­ment, which guar­an­tees that we are to be free from unrea­son­able searches or seizures by the gov­ern­ment, is on life sup­port. Yet those who drafted the Bill of Rights, the first ten amend­ments to the Con­sti­tu­tion, con­sid­ered freedom in one’s home the most essen­tial liberty.



Deeply con­cerned about pre­serving per­sonal lib­erty and prop­erty rights, the Framers believed those rights to be of para­mount impor­tance — even over public safety. In such an envi­ron­ment, cit­i­zens were seen as equals with law enforce­ment offi­cials, and author­i­ties were almost never per­mitted to enter one’s home without per­mis­sion. Modern SWAT team raids where the police crash into the homes of Amer­i­cans would have been seen as the essence of tyranny. Indeed, it was not uncommon for police offi­cers to be held per­son­ally liable for tres­pass when they wrong­fully invaded a citizen’s home. And unlike today, early Amer­i­cans could resist arrest when a police officer tried to restrain them without a proper jus­ti­fi­ca­tion or war­rant — which they had a right to read before being arrested.



This clear demand for a right to pri­vacy stemmed from a deep-seated dis­trust of those in power and their poten­tial to abuse the authority entrusted to them by the cit­i­zenry. Over time, how­ever, that instinc­tive dis­trust of gov­ern­ment has given way to a false sense of secu­rity rooted in the belief that the gov­ern­ment is looking out for our best inter­ests. Thus, as our com­pla­cency about the need to actively and per­son­ally defend our free­doms has increased, the government’s com­mit­ment to respecting our Fourth Amend­ment rights has dissipated.



To our detri­ment, Amer­i­cans today seem more attuned to what’s hap­pening on trendy reality TV shows than the goings-on in their fed­eral gov­ern­ment. Dis­tracted by their gad­gets and caught up in their vir­tual com­mu­ni­ties, many Amer­i­cans have failed to notice what’s hap­pening in their own back­yards — with the trans­for­ma­tion of law enforce­ment offi­cials into para­mil­i­tary police forces being one of the most alarming devel­op­ments in recent years. As Balko points out, “Today, every decent-sized city has a SWAT team, and most have sev­eral. Even absurdly small towns like Eufaula, Ala., (pop­u­la­tion 13,463) have them… Where their pur­pose once was to defuse an already vio­lent sit­u­a­tion, today they break into homes to look for illicit drugs, cre­ating vio­lence and con­fronta­tion where there was none before.”



While we’re for­tu­nate to have many law enforce­ment agents who strive to honor and respect the Con­sti­tu­tion, to our mis­for­tune, we have failed to raise objec­tions to the mixed mes­sages being sent when those same agents are sent to patrol our com­mu­ni­ties dressed as storm troopers, equipped with inva­sive tech­nolo­gies and sophis­ti­cated weaponry, and autho­rized to use mil­i­tary tac­tics in their efforts to uphold the law. In fact, even the equip­ment used by police during rou­tine traffic stops, such as sophis­ti­cated flash­lights con­taining super-sensitive detec­tors that sense the con­tents of your breath, has con­tributed to the steady ero­sion of our free­doms. Despite our having a con­sti­tu­tional right to pri­vacy and to not be sub­jected to unrea­son­able searches, police con­spic­u­ously sit­uate these devices in front of our faces and into our per­sonal space, and we are left with no say in the matter.



Unfor­tu­nately, the U.S. Supreme Court has been a willing accom­plice in this depre­ci­a­tion of our essen­tial lib­er­ties, handing down rul­ings that pro­vide the gov­ern­ment with end­less ways to per­vert the letter and spirit of the Fourth Amend­ment. Such rul­ings, issued in the so-called name of police safety, national secu­rity and cit­izen pro­tec­tion, have given rise to lan­guage the Framers never foresaw nor intended, such as pro­tec­tive sweep excep­tion, hot pur­suit excep­tion, inevitable dis­covery excep­tion and good faith excep­tion, to name just a few.



Yet there are some things which no decent human being can remain silent about. Amer­i­cans should be out­raged when police offi­cers use tasers on defense­less chil­dren, autistic teenagers, preg­nant women and senior cit­i­zens — all inci­dents that have been in the news in recent years. We should be up in arms over what hap­pened to young Aiyana in Detroit. No family should have to suffer the loss of a child because police offi­cers got car­ried away during a SWAT team raid. And no com­mu­nity should feel threat­ened by the pres­ence of law enforce­ment offi­cials patrolling their streets.



Where does this leave us? Having largely relin­quished con­trol over our lib­er­ties and our lives to the gov­ern­ment, we have come to some­thing of an impasse in terms of our free­doms. The only way for­ward, espe­cially if we are to revive our ailing Fourth Amend­ment and restore the bal­ance of power between cit­izen and gov­ern­ment, is to reclaim our rightful sov­er­eignty over our pos­ses­sions and our lives. That is easier said than done, how­ever. As his­tory shows, power, once handed over to the gov­ern­ment, is not easily wrested back.



The Ruther­ford Institute