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.    

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