Tuesday, January 25, 2005

A Fourth Amendment for the 21st Century

It's been a long damn time since I woke up in the middle of the night fighting mad about a stupid Supreme Court decision, but Illinois v. Caballes, did it for me. Yesterday's ruling found that police use of drug sniffing dogs at traffic stops doesn't constitute a search under the Fourth Amendment.

Why in heaven's name do we bother keeping that silly Fourth Amendment in the Constitution anyway? After yesterday, perhaps it's time to take the old nag out back and shoot it like a plowhorse with a broken leg?

Worse, some of the knowledgable folks who've studied Caballes already say it's an ill-conceived and poorly written piece of junk. That's just great. If you're going to toss out important chunks of the Constitution, it's definitely best to hand the assignment off to some punk law clerk without giving it a hard edit. I've read brilliant prose in Justice Stevens' opinions before, so those accounts make me doubt this one represents his finest hour. Maybe he's too distracted by who's going to succeed Rehnquist.

More analysis later, but for now, since it's obvious that pesky Fourth Amendment was getting in the way of all the important searching the
government wants to do, maybe it's just time to flat out revise the thing. In support of the "Wise Nine's" sentiments expressed in Caballes, I took a first stab at some new wording for a 21st Century Fourth Amendment more in keeping with the apparent values of the day. Here's my first effort.

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, unless the government is looking for something illegal and publicly taboo.

This version has the merit of simplicity: a simple exception that would include nasty items like drugs, alcohol for the underaged, child porn (or 'possible' child porn), or some other non-Constitutionally protected item like guns. (Oh, wait, that IS constitutionally protected. I'll let somebody else re-write that one.) I thought about making the requirement "illegal or taboo," but realized that, for the search to be acceptable, it would have to be both. One should never make the mistake of thinking that judges are any less politicians than folks who must run for elected office.

My second attempt tries to embody the Supreme Court's newly expressed values in a positive fashion. See what you think:

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.
In this version, the violation of our right to be secure from unreasonable searches becomes a pro-active government mandate. Why bother with pretense, you know? (I took out houses for the actual mandate, since the opinion apparently leaves open the possibility that sniffs around houses could be decided differently.) Perhaps in the long run, the new mandate might work to our advantage, since cops at the end of the day are bureaucrats who are as likely to be diligent at that job mandate as they are other bothersome tasks like writing tickets.

Finally, it strikes me that the clear intent of the Supreme majority allows for a plain-language version:
"Quit complaining, Leroy, I'm only looking to see if you did anything wrong. That ain't a search. The Supreme Court said so."
This last possibility, I think, captures the Court's war-is-peace, freedom-is-slavery approach to Fourth Amendment interpretation. For more, read what Arbitrary & Capricious called my "full throated howl of protest" on this subject from yesterday.

UPDATE: The blogosphere appears abuzz with the news, and a mostly negative reaction, though Skelly's right, one shouldn't blame the hounds. Ex Post explores the ruling this morning. The Tao Security Blog wonders about canine false positives. Drug War Rant wonders how many different ways we can kill the 4th Amendment? The Biscuit Report suggests a likely reason for the decision. My free speech expresses disgust. No Capital says "so long probable cause." Reason's Hit and Run suggests a possible tactic drivers might try. A Stitch in Haste says "the total elevation of the sniffing dog above the human being is now nearly complete." Jewish Buddha wonders if this will change dogs' status as man's best friend? In December, SCOTUS blog told us about a Maryland Supreme Court ruling that took the notion farther, declaring that a dog sniff can be used in an apartment without a warrant because it is not technology.
Mr. Jerry rightly asks, where will it end? Carrie says in the comments she didn't like it either.


CarrieJ said...

Heck, even I commented on Lonely Abolitionist about Illinois v. Caballes and I have a "no off-topic posts" rule. Of course, I suppose drug sniffing dogs could affect the death penalty at some point...knowing this country at this time, I wouldn't be surprised.

"Radical" Russ said...

{snark} Well, of course a drug-sniffing dog is not a search! In order for an activity to be a search, the authorities would have to attempt to discern the existence of items within your personal possession. Molecules of drug odor are not confined to your trunk or glove box; they are floating about in the open air, right? If an officer doesn't need probable cause if a drug is visible "in plain sight" (i.e., the photons of light reflecting off of the item are outside the confines of your personal property) why should an officer with an extremely sensitive nose (a K-9) be prevented from acting upon scent molecules "in plain smell?" {/snark}

I'm not sure who I'm pissed at more for destroying the 4th -- the courts who've ignored it in almost all drug contexts, or the public who've willfully given it away anytime the terror-warning crowd shouts "boo!"

{shameless blog whoring} Add me to your list of people who are complaining about this decision. On my blog, Radical Writ, I foretell the future based on a personal experience of my hometown county sheriff using drug dogs to patrol the (as Chris Rock would call it) mall where the white people used to shop. {/shameless blog whoring}

How about this for a new 4th Amendment? "If you're not doing anything wrong, then you have nothing to hide, do ya, punk?"

Anonymous said...

I'm only suprised that the courts didn't just say "the Constitution doesn't cover cars." Cops and judges are politicians just like legislators and prosecutors-- and usually more corrupt; they know full well that they are exempt from the same treatment as the rest of us.
I notice that being confined to the back of the travelling-jail police-car isn't "deprivation of liberty" either; while travelling once without carrying my license, I was apprised of this fact as well, while the officer subjected me to search AND imprisonment as I was "allowed" to prove that I hadn't done anything wrong.

My complaints to the police chief and mayor's office about the officer's abuse, were about as affective as a concentration-camp inmate complaining a Nazis; it's the same premise that power doesn't just corrupt-- it IS corrupt.