Anarchy X: The Fourth Amendment

“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.”

At last we get to one of the more popular and most often abused amendments. It seems like every time I turn around I hear another story of this amendment being reinterpreted, which confuses me somewhat since it seems to be pretty straightforward. I guess it’s the big question of what exactly constitutes an “unreasonable” search and seizure, and then there’s that issue of what exactly is “probable cause”, but we’ll get to each of those in a minute. Let’s take it from the top and work our way down.

First there’s the issue of what exactly we’re supposed to be secure in. “…[T]heir persons, houses, papers, and effects.” Persons means more than just no pat downs, like say, at the airport just because you’re getting on a plane. That means you can’t even be arrested, hassled, asked for ID, or anything, without probable cause. Even being pulled over by a traffic cop is enough to warrant probable cause. “I had a feeling” doesn’t cut it; “he looked suspicious” is also mighty suspicious. Houses means any residence, so any time the police enter a residence without a warrant you’re looking at a major no-no.

Papers? Does that just mean the physical material? Or was that simply the idea that you can have an idea, record it, share it, and not have the government rifling through your notes without cause to believe you are doing something illegal, regardless of the medium? As I’ve discussed before, the Founding Fathers were great statesmen and lousy prognosticators, so they really didn’t see the interwebs coming. Probably didn’t anticipate computers, smart phones, tablets, or any medium for transmitting ideas other than “papers”, but they meant to cover the whole spectrum.

So what exactly is an “unreasonable search or seizure”? That’s a little harder to pin down, but if I had to try to take a swing at it, I would say any search or seizure that occurs outside the bounds of a lawfully obtained warrant as described by the fourth amendment OR one that was necessitated by severe exigent circumstances. I know that puts some wiggle room in there, but I’m willing to be reasonable. If a guy is about to toss a smoking gun in the ocean, I’m willing to allow that a cop can wrestle it from him. What I will not allow is “we strongly suspect they’re growing pot in there and if we take the time to get a warrant they will have time to get rid of the evidence.” Yeah? If they really are, post someone to watch them and catch them doing it. Meantime, get a warrant.

What constitutes probable cause? Again, this is slippery, but I’m willing to give the razor’s edge benefit of the doubt to a trained professional. If a police officer says he saw someone carrying what appeared to be a dead body into a building, but it was nighttime from fifty yards away, I’ll still take his word for it. Anyone else, probably not. If that same officer says, “I know he did it, you know he did it, we all know he did it, we just need to get in there and get the proof!”, sorry, no dice. I’ve known a lot of things in my life that have proven not to be true, and police are no less susceptible to bias than anyone else. (By the way, I’d take that first officer’s history into account. Is he reliable? Does he have a reputation for playing fast and loose with the truth? There’s a reason warrants have to be “supported by oath or affirmation”.)

Finally, there is no carte blanche in warrants, and for good reason. If the government got to say “we think you’re a suspicious character, so we’re just gonna rummage through all your stuff until we find something to hold you on,” they could bring any one of us in. Don’t believe me? Read the laws of the state you live in. Every… single… one of them. I’m willing to bet anyone $10 cash right now they’ve violated at least one of those laws sometime within the statute of limitations. It’s almost impossible not to have. It’s the nature of the beast, because ridiculous laws get passed all the time. If they can prove you broke one, they can haul you in. Unless of course they have to have some proof in advance to get the warrant in the first place. Which keeps the government from harassing innocent people, or even not so innocent people. At least it forces them to focus on building the case first rather than just picking some poor schmuck, saying “eh, close enough”, and throwing him in jail until he rots.

Does this mean some guilty people get off on a technicality? Occasionally, yes it does. On the other hand, consider that it is far more likely that an innocent person will accept a plea bargain for a lesser charge because they can’t afford a lawyer that can get them off when faced with the power of the state. Now, imagine what would happen if we didn’t have these restraints in place. The system is not perfect, but trying to compare it to a perfect system is unrealistic. The only alternative is to compare it to the system we would have without these restraints. I for one would not prefer that alternative.