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.
I was going to make this a paid post, but I think I want people to see it more than I want to make money. It’s not a minor matter.
In my last post, I talked about why we might want to make it hard for the government to get a warrant. And before we start, let’s make something clear: this is a right afforded to all Americans and cannot be undercut by state or local authorities. Also understand that there is no specification about who does the searching and seizing. It does not matter if it’s the President of the United States himself. He doesn’t get to look at your stuff without a damn good reason and a warrant.
And yet we violate this amendment so often that we don’t even think about it. Why should we? The letter of the law is usually followed. The spirit, however…
We’re talking about the Fourth Amendment, kind of in isolation, but it doesn’t exist by itself, and there isn’t really any order of priority to the rights enumerated. In other words, you can’t justify breaking the Fifth Amendment just because you kept the Fourth. And the Fifth actually has bearing on what has happened with the Fourth because of one of its clauses: [No person shall] be deprived of life, liberty, or property, without due process of law.
Why is this clause important? Because you either have a system in place to protect We the People from abuse by those who have authority to take away everything, or you don’t have a government established by We the People. The whole process, the whole system, is designed to give every American a chance to argue their case, and not just in front of a judge. It’s also designed to give every American a chance to cooperate with the process peacefully.
Which brings us to one of the major loopholes in the above amendment. It says that a warrant must be issued. It does not say how that warrant has to be delivered.
Look at the illustration above. Are there times when this is the correct approach to serving a warrant? Possibly. Had all other avenues been exhausted first? There are two recent cases that I will highlight to suggest that they were not.
The first happened in Utah, in a scenario similar to the illustration above. The FBI gathered before dawn and breached a man’s residence at six in the morning using a vehicle mounted battering ram. The details aren’t clear about what happened, but the man in question was shot and killed. He was in his seventies, needed a walker to get around, and the FBI says he pointed a gun at them. But none of the agents involved wore a body cam, and they left the man’s body on the sidewalk for hours. This was not an isolated property, either, but in a residential area, where stray shots could have injured or killed people who were not involved.
The second happened in Kansas, where local law enforcement raided a small newspaper’s office and the home of the one of the co-founders. They had a warrant that said they could seize all the computers and cell phones in connection with their investigation of alleged identity theft by one of the paper’s reporters, which of course effectively kept them from publishing until the equipment was returned.
Without getting into the details of either case, my concern is not about the guilt or innocence of the citizens involved. My concern is that in both cases, the accused was not given a chance to comply peacefully, or to cooperate with the investigation. This is opposite of why the Bill of Rights was even considered necessary, which was to give the highest respect to every individual American.
The Kansas case gets into the problem of perception. If you serve a warrant on any news organization, you have to be very careful that you do not give the appearance of violating the Freedom of the Press. In this case, the newspaper had printed some accurate but embarrassing information about someone who then accused the paper of obtaining the information illegally. The fact that local law enforcement obtained a warrant in order to start their investigation comes across as way of saying, “No, no, we’re completely following the Bill of Rights. We’re good Americans, and we would never violate anyone’s God-given rights, especially the Freedom of the Press!” The fact that they served their warrant forcefully, even grabbing a cellphone out of a woman’s hand, does not really lend credence to that claim.
Similarly, the Utah case completely misses the point of having to get a warrant in the first place. Especially if you are going to bring a SWAT team in to serve the warrant, and even if everything goes perfectly peacefully, the warrant and the process leading to the decision to use massive firepower to serve it had better be public after the fact. I don’t care if it happens against a gang-banger in the depths of the urban jungle. I want to see the justification for such an intimidating display, and I want it to be judged.
And here’s where we get into the way the Constitution and the Bill of Rights see the government as opposed to the citizen. Going back over the way the branches of the Federal Government are given checks and balances, while the citizen is given every benefit of the doubt, tells me that America is based on the idea that any government is suspect, and will eventually devolve into a system that abuses the authority it is given. Americans have the civic duty to notice these impulses and stop them before they get out of hand.
The individual American is presumed innocent until proven guilty. The government gets no such protection, and perhaps we should treat it that way.
