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A frank discussion of the Fourth Amendment and civil liberties

by Wes Messamore, published

From police actions, to court rulings, to the impending renewal of key provisions of the Patriot Act next week, the debate over the Fourth Amendment, its meaning, and its relevance could not be any more heated, nor could a frank national conversation about civil liberties be more urgent than right now. What does the Fourth Amendment say and what rights does it guarantee to all U.S. citizens? Is the Fourth Amendment to the U.S. Constitution under assault? How can we balance the interests of public safety with an earnest regard for the civil liberties of citizens our government is working to keep safe?

First, the Fourth Amendment to the U.S. Constitution says:

"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 Founding Fathers adopted this amendment in response to years of abuse by British officials, who could obtain general search warrants called "writs of assistance," which gave them nearly unlimited power, little oversight, and virtually no liability for their actions in searching through American colonists' homes and vessels. After winning independence from England, the Framers wanted to ensure that the government of the newly constituted republic would not be allowed to search an American citizen's home or person without a warrant from a court, specifically describing what would be searched and why.

But in recent years, this basic liberty, the liberty to be secure in your person, place of residence, information, and belongings from the capricious exercise of power by unruly authorities, seems to be under assault. The passage of the Patriot Act in the aftermath of 9-11 with virtually no debate or deliberation, was considered by many civil libertarians, left and right, to be in violation of the Fourth Amendment, for allowing agencies of the executive branch to engage in searches, wiretap phones, and issue subpoenas with little or no judicial oversight, or probable cause. Some controversial provisions of the act, set to expire near the end of May, are likely to be extended for four years with a vote next week after congressional leaders struck a back room deal Thursday.

Meanwhile, the Supreme Court ruled Monday in Kentucky v. King that if police suspect a resident has illegal drugs in their house or apartment and claim that they hear sounds inside "consistent with the destruction of evidence," they may forcibly enter, seize evidence, and make arrests without a warrant. The Court handed down its ruling with an 8-1 majority, and the only dissenter, Ruth Bader Ginsburg wrote in her opinion:

"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. I dissent from the court's reduction of the Fourth Amendment's force."

Last week, the Indiana Supreme Court also ruled that residents of that state cannot resist "unlawful" police entry into their homes. Dan Carden of the Northwest Indiana Times reports that as a result of this shocking ruling-- which overturns an aspect of English jurisprudence dating back to the Magna Carta of 1215-- "if a police officer wants to enter a home for any reason or no reason at all, a homeowner cannot do anything to block the officer's entry." Residents of the Hoosier State are now forbidden by law to close and lock their doors to police officers with no warrant, no probable cause, and no legal justification for entering. Would the authors of the Fourth Amendment condone this kind of jurisprudence?

Earlier this month, while engaging in a multi-house raid with a search warrant that has since been sealed from the public, an Arizona SWAT team fired 60 rounds into Marine and two-tour Iraq War veteran Jose Guerena, who had been sleeping with his wife and and four-year-old son. Details of the raid and the shooting are murky, and complicated by contradictions and ambiguity in the Arizona Sheriff Department's reports. Why were police there in the first place? The attorney for the SWAT team officers said in a recent press conference:

"The house was targeted as part of an investigation into home invasions and drug rip offs. The Guerena house was among homes that 'were identified as locations where these activities were being carried out from.'"

With Fourth Amendment issues front and center this month, it's time for a frank and long overdue conversation about the Fourth Amendment and how to balance civil liberties with public safety as priorities that both deserve the utmost care and attention from the government of a free and civil society.

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