Pubdate: Tue, 01 May 2001
Source: Daily Camera (CO)
Copyright: 2001 The Daily Camera.
Contact:  http://www.bouldernews.com/
Details: http://www.mapinc.org/media/103

WHAT, US WORRY?

"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...."

- - From The Fourth Amendment To The U.S. Constitution

Yale legal scholar Akhil Reed Amar has said that the Fourth Amendment "is a 
priceless constitutional inheritance, but we have not maintained it well."

You'd never know it to hear First and Second amendment advocates, but the 
Fourth has taken a much worse beating than either of those in recent years. 
Fears about rising crime rates (even when they're falling), the 
government's ineffectual "war on drugs," and frustration at criminals being 
let off because of "technicalities" may be a few reasons why so many 
Americans have grown complacent.

Just last week, the U.S. Supreme Court took another whack at the Fourth 
Amendment. In a 5-4 vote that curiously teamed a more liberal justice, a 
swing voter and a troika of hardcore conservatives, the court ruled that it 
is not "unreasonable" to haul a citizen to jail for a minor traffic infraction.

Police in Texas stopped Gail Atwater in 1997 when they saw her children not 
wearing seatbelts. He searched the truck, finding nothing, then handcuffed 
the woman and jailed her. Eventually, Atwater pleaded guilty - to a $50 
traffic violation.

This was "inconvenient," the majority wrote, but it was "not so 
extraordinary as to violate the Fourth Amendment." The officer was merely 
"rude."

Rude? And we thought police who harassed citizens and hauled them to jail 
for minor infractions were confined to places where guys with "General" in 
their names rule with an iron fist.

Justice Sandra Day O'Connor, writing for the minority, was right in 
declaring that the decision "carries with it the grave potential for abuse" 
by police.

This isn't the only erosion of the Fourth in recent decades. Since the 
1960s, when the Supreme Court imposed the judicial sanction of evidence 
suppression to curb police search and seizure abuses, things have (mostly) 
gone the other way.

Among the changes: Police now can conduct a search and come to a judge to 
demonstrate probable cause after the fact. Vehicles, under the Rehnquist 
court, have become an "exigent circumstance," meaning that protections 
against searches are limited (and prosecutors would love to add drugs and 
weapons as "exigent circumstances"). Border searches, drug testing ... the 
list goes on.

In fairness, the Supreme Court also has reined in police power on other 
cases, as in recent decisions against drug-testing pregnant women without 
their knowledge and random drug checkpoints in Indiana.

But the prevailing tilt has been in the other direction. Another recent 
decision, for example, allows police to prevent suspects from entering 
their homes - in effect seizing the home - while they cobble together a 
search warrant.

In fact, Amar argues, the problem isn't simply erosion. Rather, it's that 
the court has made an indecipherable jumble of what constitutes legal 
search and seizure, which has resulted in both guilty criminals going free 
on "technicalities" and an erosion of average citizens' rights.

Why has the American public been so silent about this unsettling trend? 
Perhaps it's because we imagine this kind of thing happens only to others - 
we aren't harboring drugs, after all, and by golly, in Boulder, we buckle 
up our children. Anyway, only people who have something to hide have to 
worry about all this ... right?

Perhaps. But our complacency recalls the old story about the Protestant 
minister and the Nazis. When they came for the Jews, the Catholics, the 
socialists, the homosexuals, the Gypsies and so on, the minister kept 
silent, because he belonged to none of those groups. And by the time the 
Nazis came for him, there was nobody left to stand up for his rights.
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MAP posted-by: Terry Liittschwager