Thursday, June 15, 2006

No knock, no problem: Supremes' copy of Constitution omits Fourth Amendment

The Fourth Amendment to the US Constitution was already a tattered shred of its former glorious self when we all woke up this morning thanks to a serious of terrible US Supreme Court decisions. By eveningtime, sadly, it was weaker still - how much longer will it protect anyone at all? Today the Fourth Amendment took another body blow in a 5-4 ruling that the failure of police officers to knock and announce themselves when executing a warrant doesn't trigger the exclusionary rule - in other words, the results of the search can be used in court.

Grits has long aimed to track the Fourth Amendment's macabre death march. Longtime readers may recall that when the Supremes ruled in
Illinois vs. Caballes that using drug sniffing dogs to look for drugs doesn't constitute a "search," I posed a revised version that accounted for the Court's recent decisions up until then. My new version:
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 if an officer is looking for illegal contraband.
Now, though, even that de-fanged version of the Fourth Amendment is outdated. In Hudson v. Michigan the court ruled that "No Knock" searches are just fine, thank you very much Messrs. Roberts and Alito. So for the sake of legal accuracy, everyone please get out your own personal version of the US Constitution and make the following adjustments to the Fourth Amendment in the Bill of Rights:
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 nor need entry be announced, if an officer is looking for illegal contraband.
How do you like it? Oh really? Your opinion wasn't asked. The federal judiciary has ground our 21st Century Fourth Amendment into just another bit of meaningless, pitiful legal nostalgia, like the Ninth."Bada bing, bada boom - whaddya mean? What's that? What Fourth Amendment? Oh, we got rid of that tired old thing years ago. Gotta keep up with the times."

This is beyond a slippery slope: It's downhill ice skating.
Thanks to Orin Kerr for pointing out that "originalists" Scalia, Thomas, et. al. looked up and found a "living" Constitution when seeking to justify expanding authority for police searches. Surprise, surprise. The blogosphere already has had a lot to say.

What can we take from this travesty? That federal courts will not protect the Fourth Amendment any longer, perhaps for a generation or more going forward. That much is clear. Legislators must now install new protections into law or we should basically just strip that sucker right out of there and be done with it.
The right to privacy is better protected and it's part of the blasted "penumbra" - we're talking about one of the original ten amendments in the Bill of Rights being run through the shredder before our eyes, folks, with nary a whimper from Congress nor the President - a gloomy day, indeed.

6 comments:

Catonya said...

In '98 officer's kicked my door in. They announced themselves after the door flew through my living room (passed me) and landed in my kitchen. They did NOT have a "no-knock" warrant.

Anonymous said...

wonder what you did?

Anonymous said...

Obviously she asked them all to sit down and have tea.

Anonymous said...

The Fourth Amendment to the Constitution of the United States provides:

'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.'

Entry to defendant's living quarters, which was the beginning of the search, was demanded under color of office. It was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right. Cf. Amos v. United States, 255 U.S. 313 .

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law en- [333 U.S. 10 , 14] forcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers. Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.

Anonymous said...

just wondering what the search warrant was for?

American said...

Welcome to the police state.