“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.”
That was the Fourth Amendment to the Constitution. Well, I guess it still is, at least as it’s written. But as for its meaning, its protection of our liberties, its ratification of our rights as citizens, you can kiss it goodbye. The U.S. Supreme Court has.
In the case of Florence v. County of Burlington, the Supreme Court has determined that police may strip search you on any pretext whatever.
Oh, that’s not exactly how these lawyers put it, but that’s what it is. Justice Anthony M. Kennedy, one of the Court’s ‘moderates’ wrote for the majority that it is ‘unworkable’ to expect overworked jail officials to distinguish between dangerous criminals and the rest of us.
So it is ‘unworkable,’ the Fourth Amendment. Too hard for the cops. The old standard, good for a couple of hundred years and extended, clarified, and codified over the past sixty or so, is too difficult. Your rights as a citizen should not make it hard for the police to do what they want.
They don’t need no stinkin’ probable cause. Not anymore. The right of the people to be secure in their persons... so long as we let you be. If we want to peer up your anus, for any reason at all, we get to, and you can’t say anything about it, understand?
The Florence case could only have been decided this way with a Supreme Court of fools, ideologues, and incompetents. Five members, Scalia, Alito, Roberts, and Thomas, along with Kennedy, do not care about the Bill of Rights. Screw the Constitution. Bend over and spread ‘em.
Albert Florence is –– surprise –– a black man living in New Jersey. One evening in 2005, he was on his way to Sunday dinner with his pregnant wife, who was driving, and their 4-year-old child, when their car was stopped by a Jersey state patrolman. Florence quickly found himself handcuffed and taken to jail for allegedly failing to pay a traffic fine.
In the six days it took for Florence to prove that the cops had been mistaken, he was forced to undergo strip and visual body cavity searches at two different jails.
The police had no reason whatever, let alone probable cause, to believe that Albert Florence posed a threat to anyone, that he was in possession of contraband or carried weapons of any kind. They just felt like looking up his asshole.
The Supreme Court says that’s quite all right. Know why? Because, says Justice Kennedy, writing for the majority, they are not going to “second-guess” police conduct.
I don’t want to disturb the Justice, but ‘second-guessing’ police conduct in light of Constitutional protections is exactly what the Court’s job is. His failure to understand that may be more alarming than the decision itself.
To follow Kennedy’s logic, we may as well forget all about Gideon v. Wainright, Mapp v. Ohio, and Miranda, because the Court has now thrown out your right to be free of searches and seizures absent probable cause.
Cops, Kennedy says, no longer need probable cause. Why not? Because “Persons detained for minor offenses can turn out to be the most devious and dangerous criminals.” He noted that one of the accused 9-11 bombers had been ticketed for speeding two days earlier, presumably in support of the idea that the cops would’ve found a box cutter up his ass if only they’d been allowed to look.
It’s the kind of legal reasoning that wouldn’t have passed my first year class in Constitutional Law.
The protections of the Fourth Amendment were already under attack. Probable cause, the very center of the individual’s security against unregulated police powers, had been whittled down a bit by the 2001 Court in Terry v. Ohio in which it was held that something less than probable cause could justify a search. But even in Terry, the Court was careful to limit such activity to circumstances involving conduct which would lead a reasonable person to believe that the subject of the search “likely” possessed a weapon and constituted a “present danger” to the officer.
The Terry court held that officers “must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop...”
The Court has now obliterated what the framers of the Constitution worked so hard to establish, the fundamental protection of the individual from the prospective tyranny of the state.
Contrast today’s America with Article XIV of the Massachusetts Declaration of Rights, written by John Adams and enacted as part of the Massachusetts state Constitution in 1780, which required that all searches must be ‘reasonable’ and served as the basis for the federal Fourth Amendment:
“Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.”
The issue was of particular urgency to America’s colonists. The crown had its troops enter people’s dwellings, often looking for adverse political writings. The Excise Act of 1754 had given tax collectors unlimited power to interrogate colonists regarding their use of possession of goods subject to custom and authorized a ‘write of assistance’, which instigated the search of people’s homes to seize ‘prohibited and uncustomed’ goods. Two years later, the colony of Massachusetts enacted a law banning the use of general warrants.
When England tried to enforce its rules, the colonists organized a strong public protest. At a raucous meeting in 1761, a group of more than fifty merchants petitioned the court to grant them a hearing on colonial rules. The court declined to do so. John Adams, who was present, described this “as the spark in which originated the American Revolution.”
The framers were quite clear and unambiguous. No searches without warrants. No warrants shall issue without probable cause, describing with particularity the person or place to be searched and the things to be seized.
Maybe it’s just a vast ignorance, the result of turning the schools into corporate factories and eliminating instruction on civil liberties, the constitution and Bill of Rights, and a failure to teach critical thinking. Maybe that’s what produces dangerous morons such as Justice Kennedy and his four pals. Whatever the reason, this is no small thing.
A country whose highest court is prepared to elevate police convenience over personal rights is on its way to being a police state.