Pubdate: Mon, 11 Sep 2000
Source: WorldNetDaily (US Web)
Copyright: 2000, WorldNetDaily.com, Inc.
Contact:  PO Box 409, Cave Junction, OR 97523-0409
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Website: http://www.worldnetdaily.com/
Author: Joel Miller

SUBTRACTING THE 4TH AMENDMENT, PART II

Search-And-Seizure Tactics Rape Liberty

Editor's note:  This is the second of a two-part series on the drug war's 
detrimental effect on the Fourth Amendment.  While Part I focuses on the 
danger of drug-courier profiles, Part II takes aim at unconstitutional 
search-and-seizure tactics used by police in prosecuting the war on dope.

As Gaston County, N.C., parents and teens are discovering, the Fourth 
Amendment has about as much legal importance to school administrators as a 
forged doctor's note from an absentee student. While getting good 
circulation in history lectures, the Bill of Rights apparently doesn't pull 
enough weight to make it all the way to the parking lot.

That's because last Tuesday, Sept. 5, the county school board unanimously 
endorsed a measure to randomly search high-school students' cars parked on 
school grounds for things even worse than Eminem CDs -- guns, drugs, booze 
and tobacco. "School safety experts and district officials," notes a Sept. 
6 Associated Press report, "say they know of no other district in the state 
that performs random searches of student cars without cause."

That's because it's illegal.  Or should be.

The Fourth Amendment to the Constitution ensures -- even if you deserved an 
"F" in high-school civics -- that searches and seizures of your person or 
possessions can be made only with probable cause to believe that a crime 
actually has been committed.  But random searches are just that, random; 
there's no cause at all, probable or otherwise.

Cause or no, however, school board officials defend the move by stressing 
the safety need fulfilled by randomly rifling through students' cars. 
According to board member Mary Robinson, quoted in the Sept. 6 Gaston 
Gazette, "anything we can do to safeguard students is something we have to 
do."  Said another official: "Not to act would be criminal."

Never mind the fact that acting itself might be criminal.

James Otis knew too well how oppressive arbitrary governmental power can 
be, protesting in February 1761 the search-and-seizure practices of the 
British.  While the Fourth Amendment requires "probable cause, supported by 
oath of affirmation" along with a description of "the place to be searched, 
and the person or thing to be seized," the Limeys had no such leash.  In 
Otis' day court officers could obtain general search warrants called Writs 
of Assistance, which entitled them to browse through just about anybody's 
house, books and sock drawer as aimlessly and indiscriminately as they 
chose.  Writs of Assistance were issued without the requirement of probable 
cause or specified place to be searched; neither did the writ have a time 
limit or requirement to return it to the court.  It was, in short, a 
perpetual license to harass.

That's certainly Otis' take:  "Every one with this Writ may be a tyrant," 
he said, stating that "it is a power that places the liberty of every man 
in the hands of every petty officer."

If a man has one of these licenses to harass, said Otis, he "is accountable 
to no person for his doings.  Every man may reign secure in his petty 
tyranny and spread terror and desolation around him -- until the trump of 
the Archangel shall excite different emotions in his soul."

Like many lessons taught by our founding fathers, however, "The right of 
the people to be secure in their persons, houses, papers, and effects 
against unreasonable searches and seizures," is something we have forgotten 
in this drug-war induced haze in which we live.

Like British court officers in Otis' day, modern law enforcement 
increasingly has little compunction when it comes to random, capricious 
searches.  The only difference is that many modern searches are done 
without the insincere formality of a writ of assistance.

Want to search some guy but don't have probable cause?  Want to violate 
someone's Fourth Amendment-guaranteed privacy and just snoop around a 
while, looking for something wrong?  These days, drug cops live by the Nike 
philosophy: Just do it.

In one recent Fourth Amendment case, Indianapolis police randomly stopped 
cars looking for evidence of drug use and possession, without any 
individual suspicion, just hoping to spot some dope -- a practice described 
by Seventh Circuit Court of Appeals Chief Judge Richard A. Posner as a 
definite no-no. Covering the case, Washington Post reporter Joan Biskupic 
recounts, "Posner emphasized that the city was using the checkpoints as a 
law enforcement tool, even though there was no reason to believe that the 
various drivers stopped had done anything wrong. As such, he said, the 
practice violates drivers' privacy in an effort to find some evidence of a 
crime."

Does it matter?

Unlike Posner, some judges don't mind.  "Crackdown: The Emerging 'Drug 
Exception' to the Bill of Rights" is the title of a Hastings Law Journal 
article in which the author argues that most any police action is 
acceptable if it has something to do with drugs.  All an officer has to do 
is act in "good faith" as determined by a judge, and outrageous action and 
illegalities can be, and often are, overlooked or excused. U.S. Magistrate 
Peter Nimkoff of Miami agrees; when he resigned the bench in 1986 to 
protest erosion of the Bill of Rights caused by the drug laws, Nimkoff 
stated, there "are two constitutions -- one for criminal cases generally 
and another for drug cases."  He went on to say that such a view "invites 
police to behave like criminals. And they do."

While discussing illegal searches and seizures, one thing should not be 
overlooked: Like politicians, police do not always tell the truth. Assuming 
that the officer wants to get a conviction against an individual, lying to 
cover up an illegal search is not only easy, it is also not unheard of . 
"There is substantial evidence," one criminologist notes, "to suggest that 
police often lie in order to bring their conduct within the practices 
sanctioned by judicial decisions." Indeed there is evidence.

As James Bovard recounts in his book, "Lost Rights," some 92 percent of 
Chicago judges surveyed by Minnesota law professor Myron Orfield revealed 
that they thought officers lied at least "some of the time." Orfield 
further found that 22 percent of judges believed that officers lie in court 
more than half of the time that they testify on Fourth Amendment 
issues.  "In fifty percent of small drug cases," one Chicago prosecuting 
attorney responded to Orfield's survey, police "don't accurately state what 
happens." Worse, 38 percent of judges surveyed believed that rank-and-file 
officers are encouraged to lie in court by their superiors.

Reassuring?

The worst part about the misreporting and lying is summed up nicely by 
criminologist Randy E. Barnett:  "The only person who can usually 
contradict the police version of the incident is the defendant, and the 
credibility of the defendants does not generally compare favorably with 
that of police officers."

Especially, I'll add, in a drug case.

Some officers, however, are not so naughty as to lie in court; out of 
respect for the office of magistrate, they lie beforehand.  Judge Nimkoff, 
in a 1984 case, blasted a DEA agent who, as a last resort to nab a suspect, 
obtained a search warrant by fudging the facts on an affidavit.  With the 
warrant, the agent was able to read confidential material (protected under 
the Fourth Amendment) that, had he obeyed the law, he should have never seen.

At bottom, the issue isn't whether the confidential material had 
incriminating evidence, or whether the individual indeed committed any 
crimes.  What's at issue is that, since the officer did not have sufficient 
evidence for a warrant, he lied and fabricated evidence. The issue moves 
beyond the incrimination of the suspect to include the incrimination of the 
officer.

What kind of world do we live in that, in order to enforce some laws, 
police must break other laws?

A dangerous world.

On the morning of Oct. 2, 1992, multimillionaire Donald Scott and his wife, 
Frances, were jarred out of bed when the door of their Malibu, Calif., home 
was battered down.  Startled, Frances bolted the room and ran downstairs 
where men with guns drew down on her.  Donald, who was still recovering 
from cataract surgery, heard his wife scream, "Don't shoot me. Don't kill 
me."  Racing to defend her, he grabbed his .38 pistol and half-blindly 
raced to his wife.  Seeing Donald emerge at the top of the stairs, gun over 
his head, the armed men told him to drop the weapon. As he lowered it, Los 
Angeles County Sheriff's Deputy Gary R. Spencer shot him to death -- two 
bullets to the chest.

As bad as what actually transpired that autumn morning is, what preceded it 
is worse.

For probable cause to justify his search and raid, Spencer claimed that 
Scott was cultivating marijuana plants galore, growing thousands of them on 
his back 40 -- or so an informant had told him.  After a flyover a little 
more than a week before the raid, a DEA agent claimed he saw (flying at 
more than 1,000 ft., sans binoculars, mind you) 50 plants, which is a far 
cry from thousands -- but no matter.  After all, there was also the fact 
that police sources claimed that Scott's wife had been seen with $100 bills 
- -- something decidedly out of character for the wife of a multimillionaire, 
I should think.

The evidence was hardly compelling, and Spencer probably knew it. As 
Richard Miniter recounted in the February 1993 issue of Reason magazine, a 
five-month investigation by Ventura County District Attorney Michael D. 
Bradbury revealed that Spencer "obtained the search warrant for the raid by 
withholding evidence and testimony from the judge who signed it. Ventura 
Municipal Court Judge Herbert Curtis III was not told that a federal 
reconnaissance team had found no drugs on Scott's land when they searched 
parts of it on two occasions a week earlier. Furthermore, Bradbury said, 
several of the affidavits used to support the request for a search warrant 
were either false or misleading."

Spencer and Co. wanted to make a big bust.  Ever so eager, they lied to a 
judge and falsified affidavits.  Instead of making a bust, however, their 
lies resulted in making a widow.

In recent years, judges across the nation have been forced to dismiss cases 
as they've discovered that officers' affidavits are misleading or simply 
untruthful.  Beyond fudging a few facts in a case, sometimes officers whose 
search warrant requests are based on the word of unidentified informants, 
lie about their sources -- in some cases fabricating "informants" out of 
thin air.

The frightening aspect here is that in the 15 years between 1980 to 1995, 
the number of federal search warrants granted on the basis of evidence from 
unidentified informants skyrocketed from 24 percent to 71 percent.  It 
doesn't take Sherlock Holmes to figure out that any number of these 
unidentified informants could be entirely fictional. Of 50 judges in 
Alabama, Georgia and Tennessee, notes James Bovard, not one had ever 
required an officer to produce an informant.  For all we know these 
officers could be moonlighting as creative writing instructors teaching 
classes on short fiction.

What assuredly is not fiction is the rape of traditional American liberty 
this drug war has caused.  It should sit next to "Helter Skelter" in the 
true-crime section at your local Barnes and Noble.

Vast power and authority have been ceded to law enforcement and government 
with no care or concern for the outcome of such a transfer. So, people are 
seized and harassed, their bags and persons searched, because they happen 
to fit a profile of someone who might sell drugs.(/a) Others find police 
officers illegally rummaging through their property and arresting them for 
evidence of contraband that was illegally obtained.  Of course, with a 
decent lawyer, they stand a good chance of escaping prison for the 
possession of the illegal goods because the Exclusionary Rule forbids its 
use as evidence in court, but they will have their rights ignored and 
stepped upon because of police misconduct.

Still others will have police illegally rummage through their property, 
have their rights ignored, and maybe even get injured  while being totally 
innocent of any drug crime.  And then there are those who will be subjected 
to raids by police (much like home invasion robberies), perhaps be shot and 
wounded, or killed, and later found to possess no illegal substances.

America's drug policy pulls the wheat up with the tares.  It punishes the 
law abiding along with the lawbreaker, carpet-bombing the whole of society 
with laws and activity, hoping to squelch the behavior of a few citizens. 
The administration of justice has become an arbitrary court where law 
enforcement can pick its victims at random and prosecute them without 
mercy. That, sane people should recognize, is a greater cause for fear than 
rampant drug use.

"Nothing," once said Milton Friedman, "scares me about the notion of drugs 
being legal. ... What scares me is the notion of continuing on the path 
we're on now, which will destroy our free society."

It should scare all of us.
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MAP posted-by: Keith Brilhart