Hardly a day goes by when our government does not attempt to overstep its authority, however, recent legal and policy developments are pointing towards an insidious and coordinated power grab targeted at the Fourth Amendment. There can be no doubt that eliminating that amendment’s protections against warrantless searches would be a major victory for the forces of authoritarianism. The zones of privacy that it creates are one of the few things standing in the way of an increasingly aggressive police and security apparatus determined to assert complete authority over the lives of citizens. If this onslaught is not repelled, and soon, it can very easily snowball into a systematic dismantling of the rights and privileges that our society too often takes for granted.
The Fourth Amendment to the Constitution reads:
"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."
However, this is only the American interpretation of a legal concept that goes back to 1604 and Semayne’s Case, in which legendary British Jurist Sir Edward Coke ruled that "The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as for his repose." The case created a prohibition on unlawful searches that stands to this day. In the landmark 1765 case of Entick vs. Carrington, British Chief Justice Lord Camden further expanded on the importance of this “great end, for which men entered into society” and ruled that searches are only justified “if such a justification can be maintained by the text of the statute law, or by the principles of common law.” The case essentially limited the powers of government to those specified by law and has been used by the US Supreme Court as a guide to interpreting the Fourth Amendment. Around the same time, British abuse of extremely broad warrants in the colonies prompted Massachusetts to outlaw general warrants in 1756. A speech by lawyer James Otis decrying such searches was once called “the spark in which originated the American revolution” by John Adams.
Marijuana, civil rights canary in a coal mine that it is, is predictably being used by the government to spearhead an attack on the Fourth Amendment. Last month, the Supreme Court handed down a disgraceful 8-1 decision (Justice Ginsburg being the only one taking the side of reason) which vastly expanded the options of police officers wishing to enter someone’s home. The case, Kentucky v. King, came about after police broke into a house without a warrant simply because they smelled marijuana and claimed to have heard the sounds of “scurrying.” Hollis King was not someone police had been looking for or had any reason to suspect, they were searching for a drug dealer in a neighboring apartment, but the state argued that officers could use said “scurrying” noise as proof of destruction of evidence and thus did not need a warrant. The Supreme Court agreed.
The fact that King did indeed have marijuana in his possession is irrelevant; to grant cops the power to break into a house over a noise has almost unlimited potential for abuse. Any noise, real or imagined, can now be twisted into probable cause by the police and according to Justice Alito the unfortunate victims who “attempt to destroy evidence have only themselves to blame.” Justice Ginsburg wrote in the dissent:
“The Court today arms the police with a way routinely to dishonor the Fourth Amendment's warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”
The situation was not an emergency and there were no “exigent circumstances” forcing police to act without a warrant; this is simple abuse of power, now Supreme Court sanctioned.
Sadly, the King case is just part of a many-pronged attack on the Fourth Amendment. In Indiana, there is public outcry over a recent State Supreme Court decision that tossed out the window the right to refuse warrantless police entry. InBarnes v. Indiana the Court was
“faced for the first time with the question of whether Indiana should recognize the common-law right to reasonably resist unlawful entry by police officers." The majority’s outrageous decision:Yes, the right, old as the Magna Carta, to resist ILLEGAL police entry is disfavored by public policy. As Justice Robert Rucker wrote in the dissent, the ruling is “essentially telling Indiana citizens that government agents may now enter their homes illegally – that is, without the necessity of a warrant, consent, or exigent circumstances.”
"We conclude that public policy disfavors any such right."
Still, dwindling Bill of Rights protections are better than non-existent ones and the US Fifth Circuit Court seems eager to remind us all of that. In a decision handed down this week, the court held that illegal immigrants do not have second amendment rights and hinted that they do not have Fourth Amendment protections either. Going against established legal thought, which mandates Due Process for all individuals, the decision claims that “The People” mentioned in the text of the Constitution are only legal residents and citizens (and corporations, of course).
Although this was a Second Amendment case, the court saw fit to add that “neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.”
Not to be outdone by the courts, government agencies have also been hard at work chiseling away at people’s privacy. It was reported this week that the FBI will soon be releasing updated guidelines that loosen current restrictions and expand agents’ powers to search databases, go through people’s trash and use surveillance squads. “Claiming additional authorities to investigate people only further raises the potential for abuse,” said Michael German, former FBI agent turned ACLU lawyer. As if that wasn’t enough, the Obama Justice Department has been fighting for the right to continue the practice of warrantless GPS tracking with the ridiculous argument that “a person has no reasonable expectation of privacy in his movements from one place to another.” So that totally makes it okay for the government to play Batman and attach tracking devices to anyone it wants.
It all goes hand in hand with the growing militarization of American’s police and the power the government seeks to wield though them. We live in a time when even the Department of Education has a paramilitary unit and violent SWAT raids are performed every day and for almost any reason; where innocent women and children, unarmed suspects and even veterans can easily become target practice for murderers in uniform. To the forces of authoritarian rule, the Fourth amendment is a nuisance, a relic from the past standing in the way of the War on Drugs, the War on Terrorism and whatever future unwinnable Wars on [Something] that will be waged for power and profit. As for us, plain expendable civilians, we must resist any and all attempts to curtail this right, this weakened, rusty lock on the door to our privacy.
Originally Posted at 420petition