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Fourth Amendment Takes a Mortal Blow
In a judicial version of the terrorist attacks on the World Trade Center, the U.S. Fifth Circuit Court of Appeals has blasted a huge hole in the Fourth Amendment. If the Supreme Court fails to repair it, the Bill of Rights will topple as surely as did the Twin Towers 2 1/2 years ago.
The circumstances of the case that brought such a momentous decision to the Fifth Circuit justices are neither juicy nor noteworthy. The actual defendant is completely forgettable (some poor schmoe with a criminal record living in a trailer park near Baton Rouge, La.). What is important is the role this decision will play in future police actions in the three states within the jurisdiction of the Fifth Circuit -- Texas, Louisiana and Mississippi -- and beyond; for police in other states and judges in other districts do in fact read opinions of the federal circuit courts, which are but one small step below that shining marble court on the Hill.
While the impact of the public release of the court's opinion was largely lost in the brouhaha surrounding the publication of Richard Clarke's parting shot at his former boss, its impact is likely to be much more profound over the long term. Left unrepaired, the decision threatens to do what the USA Patriot Act could only hint at -- destroy the very foundation of the Fourth Amendment.
Of the 10 amendments that constitute the Bill of Rights, the fourth may be the most profound. By strictly limiting the circumstances under which the government may "invade" a citizen's home, possessions or person, it implicitly defines the relationship between people and government.
Each of us is entitled to a sphere of privacy which the government cannot breach except for good cause normally ruled on in advance by a judicial officer. That good cause is found in the amendment's key words, which in our pre-911 past were generally respected by the government: "unreasonable searches and seizures."
Other than searches conducted under emergency circumstances and a very few other exceptions, the long-standing general rule under which police at all levels of government have been made to operate, despite decades of pleading for looser rules, is that unless the police establish a reasonable and articulable basis on which to believe a person has committed a crime and evidence thereof will be found in the premises or on the person to be searched, they cannot conduct a search.
If they do so anyway, the evidence will be deemed unconstitutionally obtained and ruled inadmissible; which is what the federal trial court did in this particular case.
That was the law, at least until this bevy of black-robed jurists in Louisiana decided otherwise.
Placing themselves in the shoes not of the aggrieved citizen, but of the police, the majority of the judges bought into the dubious argument that absolutely any premises -- house, office, school -- into which a police officer steps, even if it is for a routine interview, poses a potential danger to the officer and therefore justifies a search of the entire premises. "Breathtaking" is the adjective that most readily comes to mind in examining the scope of this decision.
Oh, by the way, even before this decision, courts could, did, and should allow warrantless searches if the officers could articulate a threat to their safety. What these few, unelected judges have now done is allowed the exception to swallow the rule; and in so doing, threaten the very foundations of the Bill of Rights and of its ancient predecessor, the Magna Carta.
The saddest thing about their decision is it was utterly unnecessary. The police in this instance were never in danger. They could easily have obtained a warrant; they simply chose not to.
Now, with one "stroke of the pen" the protection We the People have enjoyed against "unreasonable searches and seizures," which has stood for well more than two centuries, has been blue-lined into oblivion, at least in three states of the union. Police are now free in virtually every instance, to search a person's home or office without a warrant, and without any cause to believe there is contraband therein or a reasonable belief they are in danger.
As a Second Amendment enthusiast, I sure hope these particular judges don't get the opportunity to take their blue pencils to the Second Amendment. Or the First. Or any others, for that matter. Unfortunately, with lifetime tenure, and with an administration that believes the USA Patriot Act is far too weak, I don't think my fears will be allayed any time soon.
(Bob Barr is a former
U.S. Attorney and former member of the U.S. House of Representatives.)
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