Recovering our Constitution - - the Fourth Amendment



By Tim Dunkin By this point in the evolution of our once great Republic, even the most insensitive of Americans has come to realize that the constitutional liberties that we take for granted are fast disappearing, in fact if not (yet) in word. For many of us, however, the sense of this loss of liberty is somewhat inchoate — we know that it's happening, but we can't quite put our finger on how we got to this point, or what every manifestation of this loss is in our daily lives. In this article — and in what (hopefully) will be a series of articles dealing with the loss and recovery of our liberties — I'd like to address what has happened to us, and what we can do to get back to where we ought to be.Let us begin with the 4th amendment to our Constitution,."Let us ask the fundamental question — what was the purpose of this amendment? Why was it included in a Bill of Rights that was intended to safeguard the liberties of American citizens? Basically, the purpose was the protection of our liberties at that particular conjuction where property rights and privacy meet. A man's home is his castle. Under despotic systems, no citizen really has the assurance that their property, their personal effects, or even they themselves, are safe from arbitrary search and seizure. Under such regimes, the government is not limited in its ability to interfere in the everyday life and livelihood of its subjects, whether for "law enforcement" or confiscatory purposes. This had been the case in the colonies prior to the American Revolution, and it was exactly this sort of thing that the 4th amendment was designed to check.Now, as the amendment states, there are times where it is legitimate for the government to search and seize private property. This is why the stipulation is made that "unreasonable" searches and seizures are not to be made. At certain times, however, such as in the course of a legitimate and procedurally correct criminal investigation, governmental authorities are authorized to cross the boundary into(private things) — provided that the specified procedure is followed.However, what we see occurring in the United States of America is a vast disregard for this amendment, and a vast overstepping of the delineated circumstances in which searches and seizures can be made.Why and how has this happened?I would argue that it is because of the appearance and growth of the modern "security state." Americans have gradually yielded more and more of the responsibility for their own protection, and their own behavior, to the state, and have consequently seen a vast increase in the reach and authority of the police powers of the state. In short, Americans have largely agreed to hand over the responsibility for behaving themselves to the state, allowing the state to step into areas it was never intended to be by the Founders, and exercise increasingly despotic powers, including disregarding the 4th amendment liberties of the people.This is nowhere seen more clearly and acutely than in the current situation with the TSA (officially the Transportation Safety Administration, though I've seen a few other, more appropriate, acronyms given). Under the guise of "safety," we have a non-constitutional executive agency arbitrarily deciding that if American citizens want to be able to board an airliner and travel within our own country (you know, like free people would do), then they have to submit to either having nudie pictures taken of them via millimeter-wave backscatter machines, or else be invasively searched at the hands (pun intended) of TSA personnel. Either way, this is a gross breach of the 4th amendment. Either way, a citizen is being searched, and temporarily seized (see what happens if you try to go around), by government authorities, without a warrant, without probable cause, and without any sort of statement as to what the TSA is even looking for.All because of "safety." The modern "security state" in action. We got to this point because millions of complacent Americans decided to let the government "protect" us in our travel, instead of manning up and doing it for ourselves.Not that the TSA pornoscanners and "freedom pats" will do a thing to "protect" us anywise. All this is "security circus," designed to make the gullible and stupid among us believe that we're "safe from terrorists" now. If we were really serious about airline safety, we'd be profiling Muslims. But that's another story for another day.The TSA overreach (again, pun intended) is certainly not the only place where the police powers of the state have gotten it into their heads that the 4th amendment doesn't apply anymore.What about the vast expansion of local, state, and federal law enforcement agencies as a direct result of the War on (Some) Drugs? This War has, for the past three decades, been used as an excuse for turning police agencies into paramilitary units like you'd see in some third world banana republic. We've seen the militarization of police forces. We've seen the introduction of highly risky warrantless, no-knock raids in the middle of the night. We've seen the increasing reliance on anonymous, low-reliability "witnesses" who often give false statements and erroneous addresses to the police. We've seen the introduction and expansion of property forfeiture laws in which the mere accusation of wrongdoing is enough to allow the police to seize and sell your property, even if your acquitted, and even if your case never even goes to trial. And so on.All of this is a direct result of the idiotic "War on Drugs" that is supposed to "keep us safe," but which has simply eroded out liberties to the point where they don't even exist anymore, especially if you're a law-abiding citizen who happens to have the misfortune of residing in one of America's inner cities.The police routinely use drugs, as well as allied "safety concerns" like guns, to search and seize property from citizens who are no longer considered innocent until proven guilty. Many times, these searches and seizures are done in violation of the 4th amendment, often after citizens have been more or less coerced into waiving their rights. We saw this a couple of years ago with Washington D.C.'s "Safe Homes Initiative," a program in which city residents were pressured to allow warrantless searches of their homes by city police, with the promise that "amnesty" would be given to those in whose homes "contraband" was found — provided they consented to a search. No consent, no amnesty — but the search will happen anywise, you'll just be in trouble if they find anything they don't like. Boston had a similar program back in 2008 as well, and just recently went through another round of warrantless searches of residents' homes, looking for guns and drugs — again without consent.Warrantless entries and searches, often via high-risk night-time raids on private residences, are becoming commonplace in America. Police justify these raids — and the run of the mill of the people accept this justification — on the premise that "drug dealers" could "flush drugs down the toilet" if the police actually followed the constitutional procedure of obtaining a warrant and then serving it in a reasonable fashion. Since, as we all know, a baggie full of drugs couldn'tbe recovered from the pipes under a house (hint: it takes two or three flushes to actually move...stuff...from a toilet to a septic tank or sewer). So, we have these raids — often on wrong addresses provided by spurious informants (hence, no "particularly describing the place to be searched") — that have resulted in a goodly number of innocent American citizens being shot and killed by police in the highly stressful circumstances created by these "dynamic entries."All because the police "need to keep us safe from drugs."Safety which we wouldn't need if we were actually serious about interdicting at the border (along with the people carrying these drugs, of course) and dealing with drugs in a proportionate manner — do we really need to send potheads with a few ounces of weed to jail for two-digit prison terms?The "War on Drugs" isn't the only route used by local and state police agencies to violate our 4th amendment rights. Anothersource of trouble comes from the ever-ubiquitous (or should I say?) "Child Protection Services" which ostensibly operate to protect innocent children from abuse, but which serve practically as a means of worming the state into the most sacrosanct institution of the family.In pretty much every state in the union, the CPS believes that it has the power to force you to allow them to enter your home, question you and your children, and treat you like a criminal (guilty until proven innocent) — all without a warrant or probable cause. Often, investigations by the CPS are used to harass families which have committed such grievous offenses as owning firearms, holding to strong religious beliefs (especially millenialist or evangelical), homeschooling, or being outspoken in their political conservatism. Many times, all that is needed is an anonymous tip (that's what counts for "probable cause" these days?) to start the ball rolling. I've read page after page of horror stories where families were harassed in their own homes and even had their children taken away, all at the word of a spurious informant or a vindictive bureaucrat.And again, it's all justified by "safety." It's "for the children" so as to "protect them from danger." As if child abuse and neglect couldn't be dealt with by the laws against assault, battery, and so forth that we already have on the books.So, what can we do to retake our 4th amendment rights?Well, we can begin by exerting pressure on our elected representatives — especially on the Republicans who now hold the majority in the House, and who need to be "subtly" reminded of who they work for anywise — to start reining in the abuses at the federal level. It's time to get serious about putting leashes on the BATFE, DEA, TSA, and other federal alphabet agencies that routinely disregard the Constitution in their zeal to "protect us" (and justify their budget increases). Congress can do this by using their power of oversight over federal agencies. Ultimately, Congress can force executive agencies to do its bidding, if it'll just find the political will to make it happen. Congress can, if it chooses, force the TSA to stop pornographing Americans, by defunding it if nothing else.Working on Congress to end the "War on Drugs" would help, too. Admittedly, because so many Americans have been brainwashed into thinking that we'll immediately turn into a nation full of 300 million junkies if we stop "getting tough on drugs," this is not as likely to happen. Nevertheless, we need to understand that the solution to the drug problem is not more and worse laws, but working on our fellow citizens to regain the moral fortitude to resist the temptation of drugs and start exercising personal self-government again.What about warrantless searches and seizures by state and local police?Well, in the event of a "dynamic entry" style no-knock raid (during which the police usually don't even announce themselves), the options are very limited. You can always defend yourself with deadly force, just like you would against any other armed thug who breaks into your house in the middle of the night while refusing to offer up any good reason for being there. However, that will probably either get you shot or brought up on capital murder charges (since there is a special dispensation for police officers which allows them to be exempt from the logical consequences of their actions). Probably better would be to lawyer up after the dust has settled, and make the offending police department pay dearly for its disregard for the Constitution. One would like to think that if police departments start to see a net loss each fiscal year, they'd think about finding more constitutionally-friendly ways of conducting their business.In cases where there isn't the stress of a Gestapo-like night raid, the citizen has more options. For example, when the police knock on your door and request to be allowed to search your home, or pull you over and request to search your vehicle, you can freely exercise your constitutional right to refuse them the ability to search without a warrant."I'm sorry Officer, but I do not consent to searches."These ten little words could save you a lot of heartache and trouble. Ask any defense attorney around, and they will tell you that you should never talk to the police without an attorney present or consent to searches. This holds true, even when (as you hopefully are) completely, 100%, indisputably innocent of any or all wrongdoing. The 5th amendment issue of retaining your right to not incriminate yourself may be dealt with in a later installment, but this same principle holds for your 4th amendment privacy protections.If you're innocent, why would you risk the ire of a police officer by refusing to consent to a search? For the full answer, I'd encourage you to click the video link given above. The short answer, however, is that anything a police officer finds may be used to try to build a case against you — even if you didn't know something was illegal, even if the object isn't yours but was left there by another party, and even if you didn't even know the object was there to begin with. The police don't care about any of that — they just care about building a case for a prosecutor.So if a police officer asks you to consent to a search, just remember those ten little words. And remember, if the officer has to ask, it's because he doesn't have a warrant or probable cause in the first place.This, of course, might anger a police officer, for three reasons:First, and not unexpectedly, many law enforcement officers will view a denial of consent to a search to be an affront to their personal authority. After all, citizen, what takes precedence — some dusty old piece of paper, or a guy with a badge, a crewcut, and a cool-looking pair of aviator sunglasses?Second, refusing to consent to a search costs the officer extra time. Instead of an open-and-shut case of getting consent and searching, the officer has to argue with you, trying to convince you to just go ahead and get it over with. And if the officer isserious about the search, he then has to go get a judge to issue a warrant for the search. All the while, the officer is tied up, unable to engage in other activities.Third, given the culture that has developed in many law enforcement agencies, a premium is placed on making the next "big bust." Each officer secretly hopes to be the next one to nail the guy hauling 500 pounds of crack cocaine up I-95 in his trunk. Making busts like that brings all kinds of rewards — promotions, medals, recognition in the local paper, and so forth. By refusing a search, you are possibly getting in the way of that.However, if you want to retain your constitutional rights, just remain polite but firm. You do NOT have to allow the police to search you, no matter what an officer might say or threaten you with. Indeed, you do not need to allow the police to enter your home or vehicleand for the reasons given above, you would be wise not to. Once again, if they could search you without your consent, they'd already be doing so because they have warrant in hand or have sufficient probable cause that would stand up in court. The fact that they have to ask means that you are in the right for refusing consent.One obstacle to a citizen affirming his or her rights in such a situation is psychological. The culture is such today that refusing to comply with a "reasonable" police request such as waiving your 4th amendment rights leads to the assumption that you "must have something to hide." This is an unfortunate side-effect of a couple of decades of police dramas on the television such as, where the good guys always comply with every request, and it's always the crook and the murderer and the drug dealer who "hassles" the police by refusing to let them come in, etc. However, the informed citizen should understand that refusing consent for a search does NOT imply guilt, it does NOT imply that you are hiding something, and it does NOT serve as probable cause to proceed with a search. Any police officer who says otherwise is lying to you (and the courts have, by the way, upheld rulings that allow the police to lie to suspects or "potential" suspects).In dealing with officials from a Child Protection Service or similar agency, you should understand that the same requirements apply to them as well. Despite their blustering, and the presumed urgency of their task (since "it's for the children"), you can refuse entry and require them to get a warrant.Regarding CPS agencies, one area where conservatives need to get serious is in pressuring our state and local elected officials to rein in these mini-Gestapos as well. Granted, it will take a boatload of political will because there is always the "you WANT children to get beaten and abused???" factor that the foolish will make whenever it is even suggested that child protection agencies be brought to heel. Yet, with enough persistent effort and enough awareness on the part of both parents and conservative elected officials, it can be done.The bottom line, however, is that we will only have the rights we are willing to exercise and fight for. If we consent to the assumptions about the "need" for an ever-expanding "security state," then we can kiss our Constitution goodbye, forever and for all time. If we slog through the mud and fight the security state every step of the way, we can keep our rights. It's really our choice.© Tim Dunkin