Search and Seizures Under the Fourth Amendment of the US - Essay Example

Search and Seizures under the Fourth Amendment The intent of the Fourth Amendment to the U.S. Constitution seems straightforward at first glance. In simple terms it means ‘governmental authorities can’t search a person or property unless they have a darn good reason and that reason must be approved by a dispassionate third party, a judge.’ Though the intent of the Founding Fathers appears not at all vague, this is not exactly how the wheels of justice grind in practice today. The police have used racial profiling techniques to determine who to stop and search for years and more recently, laws have been passed that allow for more intrusion from the state under the guise of enhanced security. Modern technology allows for searches into private records by anyone with a computer. It’s hardly arguable that the framers of the Constitution cherished liberty more than security. The same cannot be said about Americans today or their justice system. The Fourth Amendment reads “ 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.” (Cornell Law School) The Founders thought this Amendment paramount in the expressing their ideals of freedom and liberty. One of the main acts that helped alienate the colonists from their Mother Country was the intrusive, regular, violent warrant-less searches by the British ‘Red Coats.’ These actions galvanized the colonists thus accelerating the War for Independence. Throughout the history of the country, at least until relatively recently, the courts interpreted the Fourth Amendment much as the Founders intended. “Courts held that for search and seizure to be ‘reasonable’ under the Amendment the police must have, at minimum individualized justification for the intrusion, amounting to probable cause.” (Bodenhamer/Ely, 2008 p. 155) The past generation though has witnessed an erosion of the liberties found within the Fourth Amendment as well as other aspects of the Constitution. The Supreme Court’s practice had been to uphold a strict interpretation of the Amendment. As late as 1968 the Court ruled “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure” (Terry v. Ohio, 1968). In many ruling during the past 40 years, the Court has ruled, essentially, that the Amendment is an obstacle for law enforcement. It has separated the ‘warrant clause’ from the ‘reasonable clause’ which, in effect, drops the probable cause requirement to search or seize by utilizing what it refers to as the ‘special needs doctrine.’ The doctrine makes subjective what was intended by the Founders to be an obvious violation of civil liberties. “If the needs of law enforcement outweigh the liberty or privacy interest invaded then the Fourth Amendment is not violated” (Bodenhamer/Ely, 2008 p. 155). This diluting of the original intent has legalized and legitimized intrusions into the private lives of citizens. The Fourth Amendment is much weaker than just a few decades ago and many, including the government have taken the opportunity to strip away freedoms guaranteed by the Founders. Unlike other controversial topics, the Supreme Court is undivided on the diluting of the Fourth Amendment. Chief Justice Roberts cites the term ‘reasonableness’ as the standard for interpretation of the Amendment. Of course this term is wide open to various interpretations. The eldest and arguably the most liberal Justice, Paul Stevens has said “the most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions. …the burden is on those seeking the exemption to show the need for it.” This is likely the most liberal interpretation of members on the Court yet unlike the Founders intent remains subject to open interpretation by the cop on the street and the judge in court. (Dery, 2001 p.574) The PATRIOT Act, as many citizens and legal experts alike have argued, violates the fundamental rights of both citizens and non-citizens guaranteed by the U.S. Constitution’s first ten amendments, the Bill of Rights.  This includes the freedom from unreasonable search and seizure. The federal government has legislated the invasion of privacy through the PATRIOT Act which became federal law in October of 2001. It was quickly accepted by Congress just a month and a half following the September 11 attacks. The PATRIOT Act gives law enforcement more latitude when attempting to intercept transmissions of ‘suspected terrorist’s’ discussions via electronic surveillance. Agents of the government can now secretly tap into any citizen’s phone calls or internet communications including all visited web sites (Rackow, 2002). Individuals as well as religious and political organizations can legally be spied on by law enforcement agencies whether or not those agencies can produce any evidence a crime has or is planning to be committed. A close examination of the Act, which the members of Congress did not do prior to voting, confirms that those that champion civil liberties as such are justifiably alarmed. Libertarian organizations such as the Civil Liberties Union claim that the former Bush administration has a proclivity for secrecy and rejects the concept of transparency. The PATRIOT Act has reproved its agenda for the “outright removal of checks and balances” (Etzioni, 2004: 9). Police are supposed to be obliged by the Fourth Amendment to not detain and search a person or vehicle because it fits a certain profile. A black teenager driving a sports car may be more likely by percentage to break the law, this does not give police the right to harass this person. Unless police observe this person in the commission of a crime or are acting on verifiable information, police are supposed to be curtailed by the language of the Fourth Amendment. “Until recently, criminal defendants relied primarily on Fourth Amendment protection when alleging racist law enforcement. In so doing, they occasionally succeeded in suppressing evidence obtained as the result of racial profiling. Suppression of evidence often leads to acquittal, making this Fourth Amendment defense an extremely powerful one.” (Silton, 2002) However, the Whren v. United States Supreme Court decision (1996) for all intents and purposes killed the Fourth Amendment regarding the protection of person against racial profiling activities. “The result of this decision is that police officers have the unfettered discretion to stop any car for any reason, since it is virtually impossible to drive without violating at least one traffic law.” (Silton, 2002) The term ‘racial profiling’ is typically applied in the enforcement arena, but can be equally applied in the social realm. Prior to the terrorist attacks that took place in the United States on September 11, 2001, most people associated the term ‘racial profiling’ with the common but often unspoken practice of police officers to stop and harass young black drivers in a much higher percentage than they did this same activity with drivers of other skin tones. African-Americans of all ages correctly complained that they were being disproportionately detained and asked non-pertinent questions by the police for nothing more than the ‘crime’ of ‘driving while black.’ The practice of racial profiling is officially illegal, but police officers continue to point to statistics that seem to support its use (Turvey, 1998). The concept of criminal profiling has actually been used to assist law enforcement in preventing crime as the habits and behaviors of individual criminals can be tracked and predicted as a means of achieving capture and neutralization. Offender profiles, a series of behavioral and personal characteristics related with specific offenses, are also analyzed as a means of assisting enforcement officials in recognizing specific behavior patterns that may lead to future crime. However, criminal profiling progresses to racial profiling when the defining characteristics used comprise ethnicity, religion or race. Racial profiling occurs as officers begin to recognize a greater number of black people in prison than white, linking black people, particularly young males, with a higher prevalence of crime without taking into account the possibility that higher numbers may be simply a result of eagerness to arrest or other factors (Turvey, 1998). The advancement of medical technology has exponentially reduced the amount of privacy American citizens had been accustomed to and many believe is their inalienable right to retain. Individual privacy is at best an illusion, a concept that most Americans are strongly in favor of but none can claim. Unless the government reverses its tact and follows the examples of other nations which truly treasure their rights of privacy, the current trend of evaporating privacies will continue at the pace of emerging technologies. Just a quarter century ago, an individual’s health records were private and many think, wrongly, that they still are. No longer is a person’s medical information privy to only them and their physician. Not only can a doctor share their patient’s information, they are required to when their patient, as most do, belong to a health maintenance organizations (HMO’s) which maintain health records of their clients. In addition, life and health insurers require applicants to release their medical records prior to issuing a policy. “The Medical Information Bureau has approximately 15 million files in a central database. Every time you file an insurance claim, a copy of this information goes to MIB” (“Your Records” 1996). Some companies collect medical data on persons then sell it to drug manufactures. Personal health records, and what most erroneously believe private, information is an ‘open book’ for health care employees, their employer as well as drug and insurance companies without the person’s consent or knowledge. “In a typical teaching hospital, many people can have access to your medical reports. Anyone from the nursing staff to the x-ray technician can have a look at your records” (“Your Records” 1996). Sensitive, private information is shared on a networked database shared by these various entities. Not only the authorities can freely search through a person’s private possessions but anyone with access to a hospital or insurance computer file can easily do the same. The Founders could not possibly have anticipated computer technology but one has to think they would shudder at the idea of a person’s private business being so easy to access without their knowledge. The Fourth Amendment was inserted into the Constitution so that no citizen would be subject to unreasonable searches of their person, property or papers without showing cause that a crime was being committed. This fundamental right stayed intact until just a few decades ago. Today and against the intent of the Founders, persons can be stopped and searched by police for a minor traffic violation and the officer says they ‘suspect’ another crime is being committed. The ‘suspect’ could have slightly slurred their speech, have tired red eyes or the officer could invent a thousand other excuses. In addition, people’s private medical papers are an open book and racial profiling remains an unending tactic. The Fourth Amendment is on life support and practically worthless thanks to a Court that doesn’t seem to understand the original meaning of liberty. References Bodenhamer, David J.; Ely, James W. (2008). “The Bill of Rights in modern America” 2nd Edition. Indiana University Press. Dery, George M. (2001).“Missing the big picture: The supreme court’s willful blindness to Fourth amendment fundamentals in Florida v. White” Available April 13, 2009 from Etzioni, Amitai. (2004). “How Patriotic Is the Patriot Act? Freedom versus Security in the Age of Terrorism.” New York: Routledge. Rackow, Sharon H. (May, 2002). “How the USA Patriot Act Will Permit Governmental Infringement upon the Privacy of Americans in the Name of ‘Intelligence’ Investigations.” University of Pennsylvania Law Review. Silton, D.J. “Ineffective Solutions to Racial Profiling” (Winter 2002) excerpted from: “Profiling: a Covertly Racist Nation Rides a Vicious Cycle.” 20 Law and Inequality: A Journal of Theory and Practice. 53-90, 67-81 Available April 13, 2009 from Read More