I know so many people who will talk about their rights, their lack thereof, or even how they can limit others rights. It's interesting that everyone knows that the Fifth Amendment in the Bill of Rights is the Right to not incriminate oneself, mainly from television. "I plead the Fifth" means that we are reserving our Right to keep our mouth shut. It is the reason that the Miranda Warning is now a requirement and police have to quit asking you questions if you refuse to talk to them. However, that really is only a portion of our Fifth Amendment Rights. Yes, Rights, not just a single Right.
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
Okay, so if you just read that whole thing, you may or may not realize that "pleading the Fifth" is actually almost the last right in this Amendment. There are actually 4 rights, and it is the third of those four.
So, Fifth Amendment Right #1:
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,..."
Basically, no one can be held to answer for any crime without the prosecutor at least presenting an indictment to a grand jury. A capital crime is one that a capital punishment can be prescribed, such as murder or treason. If the death penalty can be applied, then it is definitely a "capital crime". An "infamous crime" is a little more complicated. It is one of those crimes where innocence would not be assumed by dictionary definition. However, by a law school definition, an "infamous crime" is generally anything we classify as felonies now--rape, manslaughter, larceny, felony assault, et cetera. This can vary state to state. What about misdemeanors? This is all applicable as defined over the years as falling under the same umbrella.
So, it says "no person shall be held". Yes, this has been challenged. The Supreme Court ruled under an interpretation of the Fourth Amendment, not even this Amendment, that if arrested without a warrant, the police have 48 hours before they have to have a warrant issued for arrest or let the suspect go. Don't ask me to go into why, just know that although it would sound like it was this Amendment, especially based on television crime dramas, it is a Fourth Amendment Right that the Supreme Court ruled on in 1991. It probably goes back to that Fourth Amendment Right to no search and seizure. You don't have to incriminate yourself, and if the police do not have any evidence that you are involved in a crime, they cannot hold you until you fess up to one. It would sound like it would be the Fifth, right? Well, not really. This Amendment is more about what cannot be done to you instead of what you can or cannot do.
So in general, this cannot be held thing is an accepted 72 hours rule, which doesn't include holidays or weekends either. What's the difference between the 48 hours ruling versus the 72 hours? Not sure. It all sounded like the same thing to me, but I'm a layman. Guess this is why when in doubt it's probably better to ask for a lawyer, not so much so that you need one if you're innocent, but so your rights don't get violated. For capital or other infamous crimes, it's generally more likely the police will investigate and have everything that they need before they ever pick up their suspect. Oh, and that 72 hours rule doesn't come from this Amendment either. It comes from the next Amendment--the Right to a Speedy Trial. So best guess is that the 72 hours is some limit to how slow they can be on getting an indictment after they arrest their suspect. I know. Somehow, it seems like it would come from here too. But this Amendment really tends to focus on what cannot be done to the suspect--not what the suspect has the Right to expect.
"..except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger;..."
So, here's a personal favorite since I served in the United States Navy. Any military member can tell you that we basically sign a contract that takes many of our guaranteed rights as American citizens away for the good order of our units. However, almost no military member usually understands that our Rights are even taken by the Constitution. The Bill of Rights Fifth Amendment is actually, like I stated earlier, not about the Rights we have, so much as it is about what Rights cannot be taken. So, the Founding Fathers knew that for good military order during wartime or other emergencies the military cannot immediately respond to capital or infamous crimes. So the Skipper, the Old Man, the Captain of the Ship, the General, just may be too busy to deal with the crimes at the time. For military, we all know this means if arrested under suspicious circumstances we could be held in the brig or the stockade or in quarters until the governing officer has the opportunity to review the charges. That could be a while, a long while. It could be until the end of a war years later. No joke, and the Fifth Amendment states it's perfectly acceptable. Next time you thank a service member for their service, remember how much they gave up for your freedom. Not only did they often put themselves voluntarily in peril, but they voluntarily gave up some of their Rights as American citizens. Thank them with that in mind, because not many people, less than 2% of the population, do this voluntarily.
"...nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb;..."
This is what we refer to as "Double Jeopardy". So to the idiot who told me that one of the Amendments, not the Fifth because "it is Right to Plead the Fifth", well, you were only a quarter correct at best. The Fifth Amendment also covers Double Jeopardy. Double Jeopardy means we cannot be tried again when a jury finds us innocent, even if we're stupid enough to blurt out later that we did it. I bet OJ Simpson thanks God every day for this one. Of course, it's not really meant for a guilty jerk to get off for a capital crime. What it is meant for is to prevent a person from being harassed over and over that is innocent. It sounds ludicrous to think that someone would keep trying someone over and over and over. Yet, during the years of the British Crown, if the reigning Governor or Magistrate of an area didn't get the answer from a "jury" that they wanted, then they would try someone again until they got the "jury" to answer as they wished. The Founding Fathers didn't want our country to become that.
Of course, Double Jeopardy has another edge to that sword--just what it meant in the movie of same name. If a suspect is tried and found guilty of say murder and turns out the person that they were convicted of murdering isn't actually dead, well, yes, getting out of prison and killing them would be perfectly legal. It's really the only loophole in Double Jeopardy. If someone was accused. tried and found guilty of rape, if they got out and raped the person again, it's highly unlikely anyone would ever believe that they didn't commit the rape the first time. So in that case, even if the "rapist" wasn't actually guilty the first time, no way they could prove it and Double Jeopardy would never be applied.
"...nor shall be compelled in any criminal case to be a witness against himself,..."
And there it is. "I plead the Fifth." We cannot be compelled, another words forced, into incriminating ourselves. There were several times in history that people claim they were coerced into confessions. This Amendment says this is wrong. The officers cannot keep plugging at you over and over until you bear witness against yourself. That ruling by the Supreme Court created the Miranda Warning. Another television favorite. However, we can be tricked. Compelled is defined as forced for all intensive purposes. However, if the police lie to you about what they do or do not know and you spill the beans, that is not invading your Fifth Amendment Right. What about the Miranda Warning? That's to make sure that you understand to shut the hell up and anything you say after that is free game. You were warned and therefore anything you say after that is of your own volition. Can you plead the Fifth in any type of deposition? Yes, because depositions can be used as evidence in court.
The Fifth only applies to you. If you know someone else committed a crime and you were not involved, you cannot plead the Fifth to avoid testifying. Also, you cannot plead the Fifth if you've negotiated a plea bargain. So there are various situations that you agree to wave this part of your Fifth Amendment Rights. There have been occasions where plea bargains have come under scrutiny whether they actually invade Fifth Amendment Rights. In general, forget that. The television version makes it pretty easy to understand, and fortunately for most of us, this is not what we will ever have to deal with. Does it apply to say when you are driving and you get pulled over for speeding? Well, yes. Not sure that you want to bother telling an officer that you're pleading the Fifth when he or she asks you if you know how fast you were going. Of course, most driver's licenses are no longer viewed as rights but as privileges. So, yea, just not saying anything because you got pulled over and the officer thinks they smell alcohol may or may not mean you keep your license. You signed this right over when you signed for your license in many states. Like I said the majority of us don't sign over our Bill of Rights to the military, but many of us do it everyday to the state we live in. Welcome to the slippery slope of becoming a military state.
"...nor be deprived of life, liberty, or property, without due process of law;..."
Guess what? That sentence actually includes your stuff. While police often take things with a warrant that are deemed as evidence, if it cannot be tied to a crime, they do not have the right to deprive anyone of their belongings. If the suspect is found innocent, everything is supposed to be returned that was taken as part of the on-going investigation. This is also why it's illegal to lynch someone. No one can be held indefinitely without charges or even with charges--why we have bail. And why they can't technically take your belongings until they tie them to a crime...well, except for that evidence thing.
"...nor shall private property be taken for public use, without just compensation."
Finally, they cannot give your property to anyone without "just compensation", another words "fair payment". So technically, if they take say a home as evidence as proceeds of a crime, then find out that it isn't proceeds but they auctioned it off already--bam, the government has to pay for it. Another flashback to the Crown days pre-American Revolution. It was not uncommon for people to be taken to the gallows without a trial, their property distributed to Loyalists, and even if found innocent, never get their property returned. The Founding Fathers wanted to protect our belongings. But still this is more of a referendum about what the law or public officials cannot do, rather than a Right granted directly to you or I.
Basically, the Fifth Amendment means you cannot be compelled to testify against yourself, yes. No one can force you to give witness against yourself. But it also means charges must be brought legally and formally against any suspect. No one can be tried for the same crime twice. The property of a suspect cannot be taken willy nilly. It definitely cannot be sold or given away without proper conviction of guilt, and if it is without a guilty verdict, the government must provide "just" or fair compensation for the loss.
Aren't you glad you read this? I'm betting some of you never thought it was so much more than just "I plead the Fifth."
Tuesday, August 25, 2015
Wednesday, August 5, 2015
Search and Seizure--The 4th Amendment
The Fourth Amendment seems to be a big contention lately. I recently posted to a friend's Facebook a young 21 year old man in Tennessee who was being pulled over during a "standard" DUI checkpoint who had decided to record the entire event. Why he recorded it wasn't really as important, because I'm sure it was to point out how many rights were being violated, as much as the number of violations that the police racked up during the video. Of course, the irony was that a relative of the guy got irate that the "kid" was being a "smart *ss" and should have just complied. Of course, the problem wasn't that he didn't comply. He was never asked to turn over his license or if he had been drinking. It was a DUI checkpoint. That would have been the point, right? What was amazing to me is that she, the relative, really had no idea that anything the police had done was wrong and worse yet, even if they had, it was somehow absolved in her mind because the "kid" had been a "smart *ss". So, if I'm a kid, I have no rights? If I'm 21, I am legally able to drive, vote, drink and die for my country, so "smart *ss" or not the "kid" was well within his rights. I'm probably going to use the video for example through this, along with other examples, and the link has been provided below for my readers to peruse it before or after.
So, this is the 5th blog on the Bill of Rights series, and that means the Fourth Amendment to the Constitution of the United States. So here it is:
"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."
So here in simple English:
"The right of the people..."
This means you, me, legal aliens, illegal aliens, everyone in this country. There's no statement that it doesn't include a certain religion, a certain age group, a certain race, a certain anything. The right of the people means all people. I know there are "people" that would argue this, but there is no limit there on who the people are. In the boldest and most modest reading, it is ALL people here in the United States.
"..in their persons, houses, papers, and effects,..."
All your stuff, my stuff, anyone's the stuff--our stuff. No, it doesn't say your car or your computer, but there were not such things when this document was written. It's still your "effects". All of your things are assumed to be secure that belong to you.
"...to be secure..against unreasonable searches and seizures,"
Yes, notice that I did separate that a little. It reads the same whether "The right of the people in their persons, houses, papers, and effects to be secure against unreasonable searches and seizures" as it should if you read it the exact way it is written. The point here that we, the people, and all our belongings and effects, are to be secure against unreasonable searches and seizures. That is our RIGHT.
Why was this so important to the Founding Fathers? The 13 Colonies had long been putting up with redcoats coming into their homes without proper warrant, without cause, basically at the whims of whoever was the appointed governor, and taking whatever they wanted. If they claimed you didn't pay your taxes, they really didn't need to have any one sign off on it. The claim alone could have all your property seized in the name of the Crown, even if the Crown was completely unaware of what was or wasn't seized.
"(the right)...shall not be violated,..."
Well, of course not, right?
"..and no warrants shall issue, but upon probable cause, supported by oath or affirmation,..."
Now, here's the tricky part. "No warrants shall issue" refers to the judges and magistrates, because in our society they are the ones with the granted power to issue warrants. The mayor or a Congressman or a Governor cannot issue warrants. Only judges and magistrates. Why is this? Because they are deemed as knowledgeable in the law and the rights of you and I, us, the people. They are instructed by the Fourth Amendment to not issue any warrants but "upon probable cause". Another way of wording "upon probable cause" is simply "with probable cause". The judge or magistrate must be convinced that you may have done something wrong and further proof might be obtained if they provide their signature. This is not something that has always worked. I'm sure we've all heard stories of "iffy" warrants. We either buy the stories or we don't based on our own opinions, our knowledge or lack thereof of the facts, and that's all hearsay.
Judges and magistrates are not supposed to go on hearsay. In fact, a good defense attorney, heck even a lousy one, should be able to argue against hearsay. What's hearsay? I heard it from Tom, who heard it from Jack, who heard it from Mary Beth, who heard it from Billy Goat. That's hearsay. We sometimes call it gossip. Gossip can lead to real information, to be sure. However, the judge needs to hear it "by oath or affirmation". As a law enforcement official, if a police officer affirms, basically swears that he has certain evidence--generally that he or she has to explain, that would lead one to believe that someone has broken the law, then the judge can issue a warrant. This depends on the officer's integrity and honesty, and why it so important that we start holding police officers, what we used to call peace officers, accountable if they are not honest. Officers should not be above the law, and it is a slippery slope when they are. A little lie here can blow up into a million little lies and eventually tether someone to lie after lie after lie. It also depends on the officer being able to have accumulated first hand knowledge of a person's possible involvement in a crime. If an officer were to lie about these things, then this is where they, the department they work for, the town or city or county or whatever, can get into those lengthy lawsuits for violations of people's rights.
Have we gotten away from the requirement "supported by oath or affirmation"? I would argue that yes we have. Like I said earlier, the woman that argued that the "kid" was being a "smart *ss" felt he should have just rolled his window down. It's not a requirement. Why would it be? If it's super hot outside and you have an air conditioner that can barely keep up or if it's super cold outside, while you might feel for the officer, do you really want to lower your window all the way? Probably not. If you have a manual window handle, do you really feel like it if you know that he's just going to look at your valid driver's license and take a whiff inside the window to see if he smells alcohol? I'm basically lazy. I'm not going to want to roll it all the way down either. So, he has an automatic window. How does that change the requirement? Simple. It doesn't.
You also have to understand in this particular incident the young man did absolutely nothing wrong. He was not being pulled over because he had a light out or he was speeding. He was being pulled over because it was a checkpoint. There's an irony here. Checkpoints may not be legal based on this Amendment. Checkpoints assume that you have no rights. You are using a privilege when you are driving, not a right, is the standard argument. You sign certain rights over when you agree to use the privilege, including consenting to checkpoints. Of course, I think the Founding Fathers would be rolling over in the graves at this. The Crown used checkpoints to search for all kinds of things and seize anything they deemed to be improper. Checkpoints were actually one of the grievances listed to the Crown prior to the American Revolution. Colonists were not allowed to move freely from town to town without documentation from the local military authority or the local Crown appointed magistrate. There were a slew of real and imagined concerns that the Crown used checkpoints for and without proper documentation you could be turned around, arrested and held without due process, your goods and belongings seized or all of these things. Not a big fan of checkpoints because I believe it goes against the embodiment of the 4th Amendment if not the actual wording.
Now, there is that pesky it's a privilege not a right ruling. Well, not so much as a ruling as an application of the 4th Amendment argument that some jerk lawyer made to limit others' rights. Is driving a privilege? Well, is riding a horse a privilege? Driving a horse and buggy? Owning a weapon? We take away "rights" when someone proves they are not to be trusted with that right. For example, we do not allow convicted felons to own guns. They can petition to have the right to bear arms reinstated, but until they have successfully done so, they cannot own weapons of any sort. Interestingly though, by being a convicted felon, our society does in fact take the 2nd Amendment right from them. So now, back to this young man, since he has not proven that he is not to be trusted driving, do the police officers actually have the right to stop him and ask for any documentation? This is the conundrum. Is it a right to drive? In the 1980s, MADD made it a point, and won, that driving is a privilege. We do not have the "right" to drive. We must be licensed, we must pass a test, we must be a certain age and therefore, driving is a privilege. What's the difference between privilege and right? A right is ours because it is afforded to all of us--either by age or by some other standard and we have the right no matter what. Voting is a right, after we turn 18. Voting is a right protected by various Amendments and the Constitution. But not until we are 18, and we have to register to vote and are given a registration card that most states require you present when voting unless placing an absentee vote. Owning a gun is a right, unless we are convicted felons. We still have to register a weapon if we buy from a licensed dealer. So driving is a privilege and you give up your rights before you even get started. Note now that states make us sign over certain rights by laws that they have passed that say we accept those laws and regulations by using and driving under the license they issued. I have a very strong opinion on this, but I ask you to think about it. Is driving a privilege? The fact that states have us signing over our "rights" alone kind of implies that they know it is a right that they truly should not strip us of until we screw up. But if it is a right, do they have the right to checkpoints? Voting was a right but the Deep South at one point in time denied certain people their right to vote but implementing testing rules and making voting a privilege where you could only vote if you passed a test. Privilege could be viewed as a fancy way for the government to take rights away. The great debate is then what is a right versus a privilege has been sparked since the birth of this nation.
In fact, some states are expanding this concept of privilege. Texas requires by law that you must give up your identification to a Texas law enforcement officer if asked or you will be arrested. Same clause in the documentation that you agreed to when you received that driver's license or state issued identification. It's a little scary if you think about it. There's no requirement in the Texas law that the officer needs to have a precipitating reason to ask. He or she asks and you do not comply, you go to jail. Well, the argument goes that Texas has a huge problem with illegal immigrants. Hilarious if you think about it. Texas became its own country and eventually a state because of illegal American immigrants that swarmed into the then Mexican territory. Eventually, the illegal American immigrants outnumbered the Mexican authorities, started their own rebellion, and for all intensive purposes took the land from Mexico.
Do you think of a Passport as a privilege or a right? The Federal government actually does not limit whether any American can get a Passport. Any one of us can get a Passport and travel as we please. We may not be able to fly directly to certain countries and it may not be wise to with an American Passport. However, we are not limited by the Federal government. How is the driver's license different? It's food for thought. We give up our rights that our luggage can be inspected. Not until we fly. So the driving being a privilege concept? Not until we drive. The good of the whole versus the good of the individual.
Search and seizure and the 4th Amendment are not just about whether the police breakdown your front door looking for proof of illegal activities or the weapon used in a murder. That's the television version of our rights. The 4th Amendment is supposed to protect us from anyone just going through our things whenever we haven't done anything to warrant such a search. That includes our purses and wallets, so why would we have to pull something out of our wallet or purse just on the say so of an officer? I don't know the answer. While I'm loathe over the possibility that a criminal goes free, I'm even more loathe over the possibility that an innocent person ends up sitting in jail because they didn't have their identification on them when a Texas Ranger asks for their identification. It is our right to refuse any search unless an officer has proof otherwise. The 4th Amendment is clear there.
Should you roll your window all the way down in a traffic stop? Are you just being a smart *ss? Are you allowed to be? Arguably the police can make your night difficult, but really can they? The 4th Amendment says they need a judge to say they can actually make your night difficult. Would a judge issue a warrant to search someone's vehicle if the cops said he was acting "iffy"? Probably depend on the judge and his or her mood when the cops woke him or her up in the middle of the night. Does that mean they ignore you telling them no they can't and that's OK? No. It doesn't. If we have not committed a crime, we are not suspected of committing a crime because of sworn testimony to a judge to issue warrant, then why in the heck would any privileges be taken away? Rights or privileges, after all is the real problem now. The truth is we are own worst enemies. If we view it as ridiculous and smart *ssy to tell a police officer "no sir, I do not consent to a search" we give up our 4th Amendment right without a thought. Then we actually demand others to do the same. Then we expect that is the acceptable, the only acceptable, behavior. We expect others to give up their 4th Amendment rights because we did and then eventually the police expect that we will also. That is how a police state like Nazi Germany gets started. If you choose to give up your 4th Amendment rights, that is your choice, but the thought that we have to is a slippery slope that none of us should be entertaining.
So, this is the 5th blog on the Bill of Rights series, and that means the Fourth Amendment to the Constitution of the United States. So here it is:
"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."
So here in simple English:
"The right of the people..."
This means you, me, legal aliens, illegal aliens, everyone in this country. There's no statement that it doesn't include a certain religion, a certain age group, a certain race, a certain anything. The right of the people means all people. I know there are "people" that would argue this, but there is no limit there on who the people are. In the boldest and most modest reading, it is ALL people here in the United States.
"..in their persons, houses, papers, and effects,..."
All your stuff, my stuff, anyone's the stuff--our stuff. No, it doesn't say your car or your computer, but there were not such things when this document was written. It's still your "effects". All of your things are assumed to be secure that belong to you.
"...to be secure..against unreasonable searches and seizures,"
Yes, notice that I did separate that a little. It reads the same whether "The right of the people in their persons, houses, papers, and effects to be secure against unreasonable searches and seizures" as it should if you read it the exact way it is written. The point here that we, the people, and all our belongings and effects, are to be secure against unreasonable searches and seizures. That is our RIGHT.
Why was this so important to the Founding Fathers? The 13 Colonies had long been putting up with redcoats coming into their homes without proper warrant, without cause, basically at the whims of whoever was the appointed governor, and taking whatever they wanted. If they claimed you didn't pay your taxes, they really didn't need to have any one sign off on it. The claim alone could have all your property seized in the name of the Crown, even if the Crown was completely unaware of what was or wasn't seized.
"(the right)...shall not be violated,..."
Well, of course not, right?
"..and no warrants shall issue, but upon probable cause, supported by oath or affirmation,..."
Now, here's the tricky part. "No warrants shall issue" refers to the judges and magistrates, because in our society they are the ones with the granted power to issue warrants. The mayor or a Congressman or a Governor cannot issue warrants. Only judges and magistrates. Why is this? Because they are deemed as knowledgeable in the law and the rights of you and I, us, the people. They are instructed by the Fourth Amendment to not issue any warrants but "upon probable cause". Another way of wording "upon probable cause" is simply "with probable cause". The judge or magistrate must be convinced that you may have done something wrong and further proof might be obtained if they provide their signature. This is not something that has always worked. I'm sure we've all heard stories of "iffy" warrants. We either buy the stories or we don't based on our own opinions, our knowledge or lack thereof of the facts, and that's all hearsay.
Judges and magistrates are not supposed to go on hearsay. In fact, a good defense attorney, heck even a lousy one, should be able to argue against hearsay. What's hearsay? I heard it from Tom, who heard it from Jack, who heard it from Mary Beth, who heard it from Billy Goat. That's hearsay. We sometimes call it gossip. Gossip can lead to real information, to be sure. However, the judge needs to hear it "by oath or affirmation". As a law enforcement official, if a police officer affirms, basically swears that he has certain evidence--generally that he or she has to explain, that would lead one to believe that someone has broken the law, then the judge can issue a warrant. This depends on the officer's integrity and honesty, and why it so important that we start holding police officers, what we used to call peace officers, accountable if they are not honest. Officers should not be above the law, and it is a slippery slope when they are. A little lie here can blow up into a million little lies and eventually tether someone to lie after lie after lie. It also depends on the officer being able to have accumulated first hand knowledge of a person's possible involvement in a crime. If an officer were to lie about these things, then this is where they, the department they work for, the town or city or county or whatever, can get into those lengthy lawsuits for violations of people's rights.
Have we gotten away from the requirement "supported by oath or affirmation"? I would argue that yes we have. Like I said earlier, the woman that argued that the "kid" was being a "smart *ss" felt he should have just rolled his window down. It's not a requirement. Why would it be? If it's super hot outside and you have an air conditioner that can barely keep up or if it's super cold outside, while you might feel for the officer, do you really want to lower your window all the way? Probably not. If you have a manual window handle, do you really feel like it if you know that he's just going to look at your valid driver's license and take a whiff inside the window to see if he smells alcohol? I'm basically lazy. I'm not going to want to roll it all the way down either. So, he has an automatic window. How does that change the requirement? Simple. It doesn't.
You also have to understand in this particular incident the young man did absolutely nothing wrong. He was not being pulled over because he had a light out or he was speeding. He was being pulled over because it was a checkpoint. There's an irony here. Checkpoints may not be legal based on this Amendment. Checkpoints assume that you have no rights. You are using a privilege when you are driving, not a right, is the standard argument. You sign certain rights over when you agree to use the privilege, including consenting to checkpoints. Of course, I think the Founding Fathers would be rolling over in the graves at this. The Crown used checkpoints to search for all kinds of things and seize anything they deemed to be improper. Checkpoints were actually one of the grievances listed to the Crown prior to the American Revolution. Colonists were not allowed to move freely from town to town without documentation from the local military authority or the local Crown appointed magistrate. There were a slew of real and imagined concerns that the Crown used checkpoints for and without proper documentation you could be turned around, arrested and held without due process, your goods and belongings seized or all of these things. Not a big fan of checkpoints because I believe it goes against the embodiment of the 4th Amendment if not the actual wording.
Now, there is that pesky it's a privilege not a right ruling. Well, not so much as a ruling as an application of the 4th Amendment argument that some jerk lawyer made to limit others' rights. Is driving a privilege? Well, is riding a horse a privilege? Driving a horse and buggy? Owning a weapon? We take away "rights" when someone proves they are not to be trusted with that right. For example, we do not allow convicted felons to own guns. They can petition to have the right to bear arms reinstated, but until they have successfully done so, they cannot own weapons of any sort. Interestingly though, by being a convicted felon, our society does in fact take the 2nd Amendment right from them. So now, back to this young man, since he has not proven that he is not to be trusted driving, do the police officers actually have the right to stop him and ask for any documentation? This is the conundrum. Is it a right to drive? In the 1980s, MADD made it a point, and won, that driving is a privilege. We do not have the "right" to drive. We must be licensed, we must pass a test, we must be a certain age and therefore, driving is a privilege. What's the difference between privilege and right? A right is ours because it is afforded to all of us--either by age or by some other standard and we have the right no matter what. Voting is a right, after we turn 18. Voting is a right protected by various Amendments and the Constitution. But not until we are 18, and we have to register to vote and are given a registration card that most states require you present when voting unless placing an absentee vote. Owning a gun is a right, unless we are convicted felons. We still have to register a weapon if we buy from a licensed dealer. So driving is a privilege and you give up your rights before you even get started. Note now that states make us sign over certain rights by laws that they have passed that say we accept those laws and regulations by using and driving under the license they issued. I have a very strong opinion on this, but I ask you to think about it. Is driving a privilege? The fact that states have us signing over our "rights" alone kind of implies that they know it is a right that they truly should not strip us of until we screw up. But if it is a right, do they have the right to checkpoints? Voting was a right but the Deep South at one point in time denied certain people their right to vote but implementing testing rules and making voting a privilege where you could only vote if you passed a test. Privilege could be viewed as a fancy way for the government to take rights away. The great debate is then what is a right versus a privilege has been sparked since the birth of this nation.
In fact, some states are expanding this concept of privilege. Texas requires by law that you must give up your identification to a Texas law enforcement officer if asked or you will be arrested. Same clause in the documentation that you agreed to when you received that driver's license or state issued identification. It's a little scary if you think about it. There's no requirement in the Texas law that the officer needs to have a precipitating reason to ask. He or she asks and you do not comply, you go to jail. Well, the argument goes that Texas has a huge problem with illegal immigrants. Hilarious if you think about it. Texas became its own country and eventually a state because of illegal American immigrants that swarmed into the then Mexican territory. Eventually, the illegal American immigrants outnumbered the Mexican authorities, started their own rebellion, and for all intensive purposes took the land from Mexico.
Do you think of a Passport as a privilege or a right? The Federal government actually does not limit whether any American can get a Passport. Any one of us can get a Passport and travel as we please. We may not be able to fly directly to certain countries and it may not be wise to with an American Passport. However, we are not limited by the Federal government. How is the driver's license different? It's food for thought. We give up our rights that our luggage can be inspected. Not until we fly. So the driving being a privilege concept? Not until we drive. The good of the whole versus the good of the individual.
Search and seizure and the 4th Amendment are not just about whether the police breakdown your front door looking for proof of illegal activities or the weapon used in a murder. That's the television version of our rights. The 4th Amendment is supposed to protect us from anyone just going through our things whenever we haven't done anything to warrant such a search. That includes our purses and wallets, so why would we have to pull something out of our wallet or purse just on the say so of an officer? I don't know the answer. While I'm loathe over the possibility that a criminal goes free, I'm even more loathe over the possibility that an innocent person ends up sitting in jail because they didn't have their identification on them when a Texas Ranger asks for their identification. It is our right to refuse any search unless an officer has proof otherwise. The 4th Amendment is clear there.
Should you roll your window all the way down in a traffic stop? Are you just being a smart *ss? Are you allowed to be? Arguably the police can make your night difficult, but really can they? The 4th Amendment says they need a judge to say they can actually make your night difficult. Would a judge issue a warrant to search someone's vehicle if the cops said he was acting "iffy"? Probably depend on the judge and his or her mood when the cops woke him or her up in the middle of the night. Does that mean they ignore you telling them no they can't and that's OK? No. It doesn't. If we have not committed a crime, we are not suspected of committing a crime because of sworn testimony to a judge to issue warrant, then why in the heck would any privileges be taken away? Rights or privileges, after all is the real problem now. The truth is we are own worst enemies. If we view it as ridiculous and smart *ssy to tell a police officer "no sir, I do not consent to a search" we give up our 4th Amendment right without a thought. Then we actually demand others to do the same. Then we expect that is the acceptable, the only acceptable, behavior. We expect others to give up their 4th Amendment rights because we did and then eventually the police expect that we will also. That is how a police state like Nazi Germany gets started. If you choose to give up your 4th Amendment rights, that is your choice, but the thought that we have to is a slippery slope that none of us should be entertaining.
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