America's Creeping Police State
Continued from previous page
As for the implications of such a ruling, arming the police with more power will have serious consequences for an already institutionally biased criminal justice system in regards to the “war on drugs.” Jordan C. Budd notes the existence of a “poverty exception” to the Constitution, particularly the Fourth Amendment, a bias that renders much of the Constitution “irrelevant at best, and hostile at worst, to the American poor.” While attacks on the Fourth Amendment negatively affect all members of society, minorities and the poor, generally the targets of the drug war, are more vulnerable to the abuse of power that follows.
Chief Judge Kozinski of the Ninth Circuit recently decried this “unselfconscious cultural elitism” in a case upholding the ability of police to clandestinely attach a GPS tracking device to the underside of a car parked in the driveway of a modest home:
Poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. . . . When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. . . .We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.
The same holds true in the context of warrantless door-busting. In the Kentucky case the police smelled marijuana in the hall of the apartment complex that the initial suspect they were tracking had taken refuge in. An apartment hall is a common space shared by many people, who could be emitting various odors from inside their homes, such as cooked onions or fresh paint. Had this been a single-family home in the suburbs, there is no way the smell of pot would have been detected from the doorway of the house across the street.
Scott Lemieux made this point well when he wrote:
As with the broader drug war, civil-liberties violations have a disparate impact in terms of race and class. It is generally not wealthy white suburbanites who have to worry about being stopped and frisked on the streets or having their doors broken down. Like the grotesquely harsh sentencing disparity between powder and crack cocaine possession, this erosion of Fourth Amendment rights has persisted because wealthy people are largely insulated from its effects.
The failure of society at large to secure the rights of all segments of the population, has resulted in what can only be described as a nail in the coffin of our right to privacy, at least for those who can afford it.
In her dissent, Ginsburg went on to ask, “How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?” While I agree with Ginsberg’s premise, I would go further in arguing that the war on drugs has created a dangerous precedent where even when a search warrant is obtained, we are far from secure in our homes.
For example, about a week prior to the Kentucky ruling, police authorities in Pima County, Arizona, fired 71 shots in seven seconds at 26 year old Jose Guerena, a former Marine who served two tours in Iraq. Guerena was murdered while his terrified wife and 4-year old son hid in the closet. The SWAT team that killed him was there to serve a narcotics search warrant as part of a multi-house drug crackdown. As Guerena lay dying with his wife pleading for help, the SWAT team barred paramedics from entering the home.