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Subtracting the 4th Amendment, part II

Posted By Joel Miller On 09/12/2000 @ 1:00 am In Commentary | Comments Disabled

Editor’s note: This is the second of a two-part series on the
drug war’s detrimental effect on the Fourth Amendment. While

Part I
focuses on the danger of drug-courier
profiles,
Part II takes aim at unconstitutional search-and-seizure tactics used by police in prosecuting the war on dope.

As Gaston County, N.C., parents and teens are discovering, the Fourth Amendment has about as much legal importance to school administrators as a forged doctor’s note from an absentee student. While getting good circulation in history lectures, the Bill of Rights apparently doesn’t pull enough weight to make it all the way to the parking lot.

That’s because last Tuesday, Sept. 5, the county school board unanimously endorsed a measure to randomly search high-school students’ cars parked on school grounds for things even worse than Eminem CDs — guns, drugs, booze and tobacco. “School safety experts and district officials,” notes a Sept. 6 Associated Press report, “say they know of no other district in the state that performs random searches of student cars without cause.”

That’s because it’s illegal. Or should be.

The Fourth Amendment to the Constitution ensures — even if you deserved an “F” in high-school civics — that searches and seizures of your person or possessions can be made only with probable cause to believe that a crime actually has been committed. But random searches are just that, random; there’s no cause at all, probable or otherwise.

Cause or no, however, school board officials defend the move by stressing the safety need fulfilled by randomly rifling through students’ cars. According to board member Mary Robinson, quoted in the Sept. 6 Gaston Gazette, “anything we can do to safeguard students is something we have to do.” Said another official: “Not to act would be criminal.”

Never mind the fact that acting itself might be criminal.

James Otis knew too well how oppressive arbitrary governmental power can be, protesting in February 1761 the search-and-seizure practices of the British. While the Fourth Amendment requires “probable cause, supported by oath of affirmation” along with a description of “the place to be searched, and the person or thing to be seized,” the Limeys had no such leash. In Otis’ day court officers could obtain general search warrants called Writs of Assistance, which entitled them to browse through just about anybody’s house, books and sock drawer as aimlessly and indiscriminately as they chose. Writs of Assistance were issued without the requirement of probable cause or specified place to be searched; neither did the writ have a time limit or requirement to return it to the court. It was, in short, a perpetual license to harass.

That’s certainly Otis’ take: “Every one with this Writ may be a tyrant,” he said, stating that “it is a power that places the liberty of every man in the hands of every petty officer.”

If a man has one of these licenses to harass, said Otis, he “is accountable to no person for his doings. Every man may reign secure in his petty tyranny and spread terror and desolation around him — until the trump of the Archangel shall excite different emotions in his soul.”

Like many lessons taught by our founding fathers, however, “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” is something we have forgotten in this drug-war induced haze in which we live.

Like British court officers in Otis’ day, modern law enforcement increasingly has little compunction when it comes to random, capricious searches. The only difference is that many modern searches are done without the insincere formality of a Writ of Assistance.

Want to search some guy but don’t have probable cause? Want to violate someone’s Fourth Amendment-guaranteed privacy and just snoop around a while, looking for something wrong? These days, drug cops live by the Nike philosophy: Just do it.

In one recent Fourth Amendment case, Indianapolis police randomly stopped cars looking for evidence of drug use and possession, without any individual suspicion, just hoping to spot some dope — a practice described by Seventh Circuit Court of Appeals Chief Judge Richard A. Posner as a definite no-no. Covering the case, Washington Post reporter Joan Biskupic recounts, “Posner emphasized that the city was using the checkpoints as a law enforcement tool, even though there was no reason to believe that the various drivers stopped had done anything wrong. As such, he said, the practice violates drivers’ privacy in an effort to find some evidence of a crime.”

Does it matter?

Unlike Posner, some judges don’t mind. “Crackdown: The Emerging ‘Drug Exception’ to the Bill of Rights” is the title of a Hastings Law Journal article in which the author argues that most any police action is acceptable if it has something to do with drugs. All an officer has to do is act in “good faith” as determined by a judge, and outrageous action and illegalities can be, and often are, overlooked or excused. U.S. Magistrate Peter Nimkoff of Miami agrees; when he resigned the bench in 1986 to protest erosion of the Bill of Rights caused by the drug laws, Nimkoff stated, there “are two constitutions — one for criminal cases generally and another for drug cases.” He went on to say that such a view “invites police to behave like criminals. And they do.”

While discussing illegal searches and seizures, one thing should not be overlooked: Like politicians, police do not always tell the truth. Assuming that the officer wants to get a conviction against an individual, lying to cover up an illegal search is not only easy, it is also not unheard of . (See the sidebar

“Exclude this!”
for a brief note on how illegally obtained evidence is treated in court.) “There is substantial evidence,” one criminologist notes, “to suggest that police often lie in order to bring their conduct within the practices sanctioned by judicial decisions.” Indeed there is evidence.

As James Bovard recounts in his book, “Lost Rights,” some 92 percent of Chicago judges surveyed by Minnesota law professor Myron Orfield revealed that they thought officers lied at least “some of the time.” Orfield further found that 22 percent of judges believed that officers lie in court more than half of the time that they testify on Fourth Amendment issues. “In fifty percent of small drug cases,” one Chicago prosecuting attorney responded to Orfield’s survey, police “don’t accurately state what happens.” Worse, 38 percent of judges surveyed believed that rank-and-file officers are encouraged to lie in court by their superiors.

Reassuring?

The worst part about the misreporting and lying is summed up nicely by criminologist Randy E. Barnett:

    The only person who can usually contradict the police version of the incident is the defendant, and the credibility of the defendants does not generally compare favorably with that of police officers.

Especially, I’ll add, in a drug case.

Some officers, however, are not so naughty as to lie in court; out of respect for the office of magistrate, they lie beforehand. Judge Nimkoff, in a 1984 case, blasted a DEA agent who, as a last resort to nab a suspect, obtained a search warrant by fudging the facts on an affidavit. With the warrant, the agent was able to read confidential material (protected under the Fourth Amendment) that, had he obeyed the law, he should have never seen.

At bottom, the issue isn’t whether the confidential material had incriminating evidence, or whether the individual indeed committed any crimes. What’s at issue is that, since the officer did not have sufficient evidence for a warrant, he lied and fabricated evidence. The issue moves beyond the incrimination of the suspect to include the incrimination of the officer.

What kind of world do we live in that, in order to enforce some laws, police must break other laws?

A dangerous world.

On the morning of Oct. 2, 1992, multimillionaire Donald Scott and his wife, Frances, were jarred out of bed when the door of their Malibu, Calif., home was battered down. Startled, Frances bolted the room and ran downstairs where men with guns drew down on her. Donald, who was still recovering from cataract surgery, heard his wife scream, “Don’t shoot me. Don’t kill me.” Racing to defend her, he grabbed his .38 pistol and half-blindly sped to his wife. Seeing Donald emerge at the top of the stairs, gun over his head, the armed men told him to drop the weapon. As he lowered it, Los Angeles County Sheriff’s Deputy Gary R. Spencer shot him to death — two bullets to the chest.

As bad as what actually transpired that autumn morning is, what preceded it is worse.

For probable cause to justify his search and raid, Spencer claimed that Scott was cultivating marijuana plants galore, growing thousands of them on his back 40 — or so an informant had told him. After a flyover a little more than a week before the raid, a DEA agent claimed he saw (flying at more than 1,000 ft., sans binoculars, mind you) 50 plants, which is a far cry from thousands — but no matter. After all, there was also the fact that police sources claimed that Scott’s wife had been seen with $100 bills — something decidedly out of character for the wife of a multimillionaire, I should think.

The evidence was hardly compelling, and Spencer probably knew it. As Richard Miniter recounted in the February 1993 issue of Reason magazine, a five-month investigation by Ventura County District Attorney Michael D. Bradbury revealed that Spencer “obtained the search warrant for the raid by withholding evidence and testimony from the judge who signed it. Ventura Municipal Court Judge Herbert Curtis III was not told that a federal reconnaissance team had found no drugs on Scott’s land when they searched parts of it on two occasions a week earlier. Furthermore, Bradbury said, several of the affidavits used to support the request for a search warrant were either false or misleading.”

Spencer and Co. wanted to make a big bust. Ever so eager, they lied to a judge and falsified affidavits. Instead of making a bust, however, their lies resulted in making a widow.

In recent years, judges across the nation have been forced to dismiss cases as they’ve discovered that officers’ affidavits are misleading or simply untruthful. Beyond fudging a few facts in a case, sometimes officers whose search warrant requests are based on the word of unidentified informants, lie about their sources — in some cases fabricating “informants” out of thin air.

The frightening aspect here is that in the 15 years between 1980 to 1995, the number of federal search warrants granted on the basis of evidence from unidentified informants skyrocketed from 24 percent to 71 percent. It doesn’t take Sherlock Holmes to figure out that any number of these unidentified informants could be entirely fictional. Of 50 judges in Alabama, Georgia and Tennessee, notes James Bovard, not one had ever required an officer to produce an informant. For all we know these officers could be moonlighting as creative writing instructors teaching classes on short fiction.

What assuredly is not fiction is the rape of traditional American liberty this drug war has caused. It should sit next to “Helter Skelter” in the true-crime section at your local Barnes and Noble.

Vast power and authority have been ceded to law enforcement and government with no care or concern for the outcome of such a transfer. So, people are seized and harassed, their bags and persons searched, because they

happen to fit a profile of someone who might sell
drugs.
Others find police officers illegally rummaging through their property and arresting them for evidence of contraband that was illegally obtained. Of course, with a decent lawyer, they stand a good chance of escaping prison for the possession of the illegal goods because

the
Exclusionary Rule forbids its use as evidence in court,
but they will have their rights ignored and stepped upon because of police misconduct.

Still others will have police illegally rummage through their property, have their rights ignored, and maybe even get injured while being totally innocent of any drug crime. And then there are those who will be subjected to

raids by police (much like home invasion
robberies),
perhaps be shot and wounded, or killed, and later found to possess no illegal substances.

America’s drug policy pulls the wheat up with the tares. It punishes the law abiding along with the lawbreaker, carpet-bombing the whole of society with laws and activity, hoping to squelch the behavior of a few citizens. The administration of justice has become an arbitrary court where law enforcement can pick its victims at random and prosecute them without mercy. That, sane people should recognize, is a greater cause for fear than rampant drug use.

“Nothing,” once said Milton Friedman, “scares me about the notion of drugs being legal. … What scares me is the notion of continuing on the path we’re on now, which will destroy our free society.”

It should scare all of us.


Sidebar: “Exclude this!” explains how illegally obtained evidence is treated in court.


Related items:


“Subtracting the 4th Amendment, Part I”

Drug-courier profiles and the assault on American liberty.


“The problem with drug raids”

A piece about sacking the Bill of Rights to pursue drug offenders.


“Yakkity yak, don’t talk smack”

A column about the drug war’s recent attacks on free speech.


“Drug policy and my pal, Cal”

Taking conservative columnist Cal Thomas to task for hypocritical drug stance.


“Politicians and media hype drug fears”

Why pols and the papers blow dope out of proportion — self-advancement.


“One toke over the line, sweet Jesus?”

What does the Bible say Christians should think about drugs? This column attempts an answer — and it isn’t death-by-stoning.


“Witch way on drugs?”

The follow-up column to “One toke over the line, sweet Jesus?” exploring the drug-witchcraft connection.


“Fat for thought”

We’ve got a war on drugs, why not fatty foods?


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