The Erosion of the 4th Amendment.

A Writ of Assistance granted general search powers to British government agents starting in 1660 and continuing until 1819. Through these Writs of Assistance, agents could search any home, at any time, for any reason.  

The Fourth Amendment to the United States Constitution was drafted in part in response to Writs of Assistance.  The Forth 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.

The Fourth Amendment imposes two requirements for a search by government officials to be lawful.  The search must be reasonable; and a warrant may not be issued unless probable cause is properly established and the scope of the authorized search is set out with particularity. (How many applications for search warrants are denied by judges reviewing the search warrant application? My guess- not many.)

The Massachusetts Declaration of rights contains a similar clause.  Article XIV states: Every subject has a right to be secure from all unreasonable searches, and seizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.

Unfortunately, the 4th Amendment prohibition against unreasonable searches and seizures is being slowly eroded. For instance, in Richard L. Barnes v. Indiana the Indiana Supreme Court ruled that the right to reasonably resist an unlawful police entry into a home is no longer recognized. In a similar case named Kentucky v. King, the Supreme Court of the United States ruled that police can knock down doors and enter a private dwelling if they merely hear noises that lead them to believe that evidence is being destroyed. 

In the King case police in Lexington, Kentucy tracked a drug dealer to an apartment complex. The police were not sure which of two apartments the dealer had entered.  There was an apartment on the the left and on the right. Turns out the dealer was in the apartment on the right.  Police thought they smelled marijuana  coming from the apartment on the left, they knocked loudly on the door and yelled "police."  The police then thought they heard people in the apartment moving about, possibly destroying evidence. The police then banged on the door again, said they were entering and kicked the apartment door down. After entering, the police  found drugs and drug paraphernalia, but later found that the drug dealer was actually in the apartment on the right.

Justice Samuel Alito wrote in the opinion that residents who “attempt to destroy evidence have only themselves to blame” when police burst in. The government and courts justify the erosion of Constitutional rights by applying exceptions to criminal acts like terrorism, smuggling and dealing drugs.  Soon all these exceptions, which make it easier to prosecute criminals, simultaneously make the government more powerful against law abiding citizens. 

In the above Supreme Court example, the police could be patrolling a neighborhood, think they smell marijuana coming from a home and enter the home. The problem of course becomes maybe the smell isn't coming from the home that was entered, or maybe the smell wasn't marijuana.  Gosh how about the police simply want to enter a home, use the excuse that marijuana was smelled, but later claim that none was found after the entry was made.  Scary stuff.  We may have the 4th Amendment and other Constitutional rights, but all these rights are useless unless citizens demand the enforcement of those rights whether against criminals or law abiding citizens. The erosion of freedom usually starts small, almost unnoticed. This erosion is sold to the unsuspecting as reform, something that will bring greater security and will benefit people. This exchange of freedom for security is shown as useful, and fairer. Benjamin Franklin said that those who are willing to trade liberty for security deserve neither. He was right.  Those who exchange the freedoms guaranteed in the 4th Amendment for security receive government repression in the trade.

*The above information is very general in nature and should not be considered or relied upon as legal advice. If a reader has a legal problem immediately consult an attorney for specific legal advice. See the disclaimer at the bottom of the page for more information.

Photo credit

No comments: