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Friday, December 23, 2005

Fourth Amendment

Posted on Wed, Dec. 21, 2005

Undermining the castle walls

Special to The Free Lance-Star

CHARLOTTESVILLE, Va. - Around 9:40 one night, Estelle Newcomb's otherwise quiet evening was interrupted by the unexpected crash of her door being kicked in. Local drug investigators stormed into her quaint Virginia home while Newcomb was busy working on her computer. They drew their weapons and began screaming at the 50-year-old to get down on her hands and knees.

She was frightened into compliance. It was only after one of the officers recognized Newcomb from the community that the raid unit realized that it had mistaken her house for that of a drug smuggler. The homeowner fortunately escaped physical injury, but her sense of security and privacy was shattered.

Sadly, Newcomb's story is not uncommon. There are many such occurrences that strike at the very core of our constitutional freedoms.

Modern police surveillance is more invasive than ever. Laws are passed granting the government unfettered access into the most private matters of our lives. Meanwhile, late-breaking news floods our TV screens, reporting the most recent episodes of police brutality.

Yet many fail to recognize that the most important protection of our constitutional liberties -- the Fourth Amendment -- is crumbling.

The Fourth Amendment guarantees that we are to be free from unreasonable searches or seizures by the government. And although many continue to hear such legal phrases, the rights themselves have suffered extreme diminishment over time. In fact, two very different versions of the Fourth Amendment seem to exist: the original, which guaranteed personal privacy and freedom, and today's abused rule of law, littered with countless judicial exceptions.

Our Founding Fathers, who drafted the Bill of Rights, were deeply concerned about preserving personal liberty and property rights. Indeed, many considered freedom in one's home the most essential liberty.

The Framers believed that property and privacy rights were paramount -- even over public safety. In early America, citizens were considered equals with law enforcement officials. The authorities were almost never permitted to enter one's home without permission or violate a domicile in a deceitful manner. It was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen's home.

Also, unlike their modern-day counterparts, early Americans could resist arrest when a police officer tried to restrain them without a proper justification or warrant -- which the citizen had a right to read before being taken to jail.

Early Americans dealt with problems such as petty thievery, murder and attacks by foreign enemies. The demand for privacy stemmed from a harbored suspicion of law enforcement officials and the unbridled discretion they could abuse.

Tragically, the essential liberties that were aggressively afforded to early Americans by the Fourth Amendment have largely disappeared. Worse, many Americans have lost focus on the importance of the essential liberties that the Fourth Amendment protects.

We turn a blind eye to everyday intrusions into our privacy. We seem to care more about the newest reality TV show than we do about the fact that our government can, and does, use advanced thermal-imaging devices to watch our every move.

We fail to fully grasp the significance of reports about people getting shocked by police Tasers or laws granting the government unfettered access to the books we read. Many of us scoff at the idea that police practices such as those employed in DWI and drug checkpoints -- while used in hopes of saving lives -- often strike a brutal blow to our most fundamental liberties.

While most law enforcement agents strive to honor and respect the Constitution, many of today's police tactics and equipment conflict starkly with the "freedom" vision of the Framers. Equipment used by police -- such as sophisticated flashlights containing super-sensitive detectors that sense the contents of your breath, and cyberized taps that detect the information you read and write on your computer -- undermines the foundation of our liberties.

Despite our privacy rights, police conspicuously situate these invasive devices in front of our faces and into our personal space. Likewise, they frequently use minor breaches of the law -- such as failing to fully stop at a stop sign -- to justify a complete, but often unnecessary, search and seizure. Most disturbing, they often use lies and deceit to gain access to our homes, cars and other private possessions.

Unfortunately, the U.S. Supreme Court has been a willing accomplice in this depreciation of essential freedoms. High-court opinions are plagued with countless exceptions that pervert the letter and spirit of the Fourth Amendment. Such cases include language that the Framers never foresaw nor intended, such as the "protective sweep" exception, the "hot pursuit" exception, the "inevitable discovery" exception and the "good faith" exception. The courts use rationales such as police safety, national security and citizen protection to justify these intrusive and corruptive interpretations.

Unlike historical "officers of the peace," many modern police departments act and dress like paramilitary units. They present themselves in a manner to intimidate and coerce us. Many contemporary police units wear black, military-style uniforms and display a host of weapons that some don't hesitate to use.

Consider the story of Malaika Brooks. What began as a routine traffic stop quickly escalated to a nightmarish display of unnecessary hostility. Brooks, eight months pregnant, was pulled over by Seattle police for speeding. When she refused to sign the ticket, the officers treated her as a belligerent criminal, using a Taser gun to send a 50,000-volt shock of electricity through her.

These officers took advantage of their broad discretion and ignored their responsibility to respect her rights. Instead of handling her as a dangerous criminal, these cops should have approached Brooks as a citizen whose constitutional rights are valuable, and with a commitment to protect those rights.

Incorporating such respect into police encounters with citizens is the only way that the Fourth Amendment will keep functioning. Police officers must be trained to know, understand and discern constitutional rights. After all, the Constitution is the very document they have sworn to honor and uphold.

Finally, we the people are responsible for protecting our rights. Why do many simply shrug at abuses of rights that early Americans not only enjoyed but demanded?

Thomas Jefferson remarked, "The price of freedom is eternal vigilance." He understood quite clearly that once we give our freedoms away, we will never get them back. Jefferson was right. When citizens' Fourth Amendment protections are undermined, our most precious freedoms are not just in jeopardy -- they are destroyed.


IV. 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.

The Bill of Rights

The Free Lance-Star in Fredericksburg, Va., has asked writers from across the country and the political spectrum for their takes on each of the U.S. Constitution's first 10 amendments.

The Star-Telegram will run the 16-part series through the end of the year.

Coming Thursday:

The Fifth Amendment and double jeopardy.
John Whitehead, a constitutional attorney, is founder and president of the Rutherford Institute. He wrote this for The Free Lance-Star in Fredericksburg, Va.

© 2005 Star-Telegram and wire service sources. All Rights Reserved.