Failing the Fourth Amendment

To paraphrase a line from Thomas Paine, these are times that try the Constitution's soul. The public's fear of violent crime and drugs has collided with constitutional norms regarding the rights of criminal suspects. So far, the Constitution is losing. During the last decade, legislatures and courts across the land have--with the public's full support--been busy passing laws and issuing decisions that have given law enforcers new powers to counter crime. Put in jeopardy is the Fourth Amendment protection against unreasonable searches and seizures. The sentiment is so strong that one Wisconsin judge recently said that judges today are afraid to defend the Fourth Amendment in their decisions for fear the voters will throw them out of office. "In today's climate, to take a stand in favor of the Fourth Amendment would be [electoral] suicide," the judge remarked, adding that even judges who strongly believe in Fourth Amendment protections have been cowed into silence. Tell it to the Madison, WI man who was recently seized by police and--as his 2-year-old stepson and neighbors looked on--had guns pointed to his head because he supposedly resembled a restaurant robber. The officers later invaded his apartment, hunted for evidence and searched his girlfriend--all without a warrant. The man, who happens to be black, had nothing to do with the robbery. Imagine, for a moment, the horrible mixture of anger, humiliation and fear that any of us might feel in the same situation should the police come barging into our lives, guns drawn. But the public seems ready to tolerate strong-arm enforcement if it means safer streets. The first half of 1995 witnessed a 31% reduction in murders in New York City, and startling reductions in gun-related crimes took place in Kansas City and elsewhere. One reason for the decline: more aggressive police tactics to detain and frisk young men on the streets who might possess illegal guns. If police find a gun, they seize it. If they don't find a gun, the friskee walks, perhaps to be frisked again. These police actions are based on the now-famous studies by Lawrence Sherman, a criminologist at the University of Maryland, which suggest that such aggressive tactics are the only proven means to get guns off the streets. But while such methods may be effective, they come at a price. In Terry v. Ohio, in 1968, the United States Supreme Court ruled for the first time that some police searches of a person for weapons may be based on less than "probable cause." Police may frisk if they "reasonably believe" the suspect is armed. But Sherman detentions and frisks push the Terry envelope. Herman Goldstein, a nationally known expert on police at the UW-Madison Law School, says police are conducting Sherman-type searches en masse. The intrusions are not justified by any meaningful threshold of evidence--a troubling development for defenders of constitutional rights. Furthermore, as Goldstein notes, Sherman-based frisks are directed primarily at black men. They threaten to further alienate citizens on grounds of race, and ultimately to undermine the respect police need in the community to be effective. Blacks already distrust police, and the shocking revelations of former Los Angeles police officer Mark Fuhrman's racist methods shows that this fear is sometimes justified.DEALING WITH CRIME No rational person pooh-poohs the threat of crime or denies that principled laws backed by strong sanctions are justified. The community has the right to protect itself, and we are entitled to judge that certain forms of behavior are utterly unacceptable. Rights and personal responsibility are two sides of the coin of constitutional freedom. But the Constitution requires that the police power be exercised with reason and respect for liberty. Violations of constitutional rights and Sherman searches by police, argues UW-Madison Law Professor David Schultze, threaten to undermine the community relations that are crucial to good law enforcement. According to Schultze, constitutional rights and effective law enforcement go hand in hand. Respect for the Constitution engenders more cooperation in the community, and it compels police to work harder, thereby putting together better cases. A principled and effective approach to the crime problem should balance respect for the constitutional rights of citizens with a commitment to the legitimacy of the criminal sanction. Unfortunately, the new politics of law and order gripping the nation appear to be pushing the proper balance out of whack. The United States Supreme Court has relaxed important standards of criminal procedure, especially those involving the Fourth Amendment. Usually these cases involve drugs, suggesting that the War on Drugs has become a war on the Constitution. The court's Fourth Amendment rulings have left more than one legal expert wondering: "Is there really a Fourth Amendment anymore?" A perusal of some Supreme Court decisions since the early 1980s tells the tale. First, the court has expanded the established "exceptions" to the warrant requirement to include automobile searches, consent searches, searches of evidence that is in "plain view," search incident to arrest, hot pursuit and other "exigent circumstances," etc. Though police may conduct searches in these situations without warrants, they must justify each search by standards and criteria the court has fashioned for each exception. The goal is to judicially balance the public's right to be safe from crime with its right to be safe from the government. During the last 20 years, however, the court has relaxed these standards on several fronts, making the warrant exceptions more the rule than the exception. Also, in a series of rulings beginning in 1983, the court has made it easier for magistrates to find the probable cause required for a search warrant to be issued. Since the early '80s, the number of court-authorized orders for state and federal interception of wire, oral or electronic communications has mushroomed. Federal authorizations have grown almost fivefold. In yet another attack on privacy, the Supreme Court has limited the definition of what constitutes a "search" or a "seizure" subject to Fourth Amendment protections, thereby restricting the domain of privacy that is subject to constitutional protection in the first place. For example, the court has ruled that pictures of one's property taken from airplanes or helicopters with high-tech cameras do not constitute "searches" at all, even if the property adjoins the home, because of the "open fields" exception to the expectation of privacy. In Florida v. Bostick (1991), the court said that a suspicionless bus sweep for drugs that involved confrontation and interrogation of passengers by police did not constitute a "seizure." In so ruling, the court paid little heed to the fact that passengers were intimidated and felt they had to consent to a search. A year earlier, in Michigan v. Sitz, the court upheld police use of sobriety checkpoints. As Nadine Strossen, president of the American Civil Liberties Union, points out, Sitz was the first time--outside of a few special situations concerning employment and border enforcement--that any higher court upheld searches of individuals without any pretext whatsoever.STATE COURTS TOO Wisconsin courts, for example, have obediently followed the U.S. Supreme Court in relaxing Fourth Amendment standards, in some cases going even further in giving power to the police. For example, in State v. Seibel (1991), the Wisconsin Supreme Court entered new terrain by holding that a blood sample could be taken from a driver based on a reasonable suspicion that the driver is intoxicated. The U.S. Supreme Court has not sanctioned such actions without probable cause, a higher level of suspicion. Perhaps more important, Wisconsin courts have been tolerant of so-called pretext arrests. A pretext arrest arises when police arrest someone for a minor offense in order to search him or her for evidence pertaining to a more serious offense. The classic example is arresting someone for a traffic violation--a bad taillight, for example--then searching the driver and car for contraband. Pretext arrests raise issues similar to the use of Sherman frisks because they allow police to search after the initial arrest for specific evidence on mere suspicion rather than probable cause. The U.S. Supreme Court has not been very clear about the validity of pretext searches, and several state courts have limited them under state constitutions. Since 1986, however, the Wisconsin Supreme Court has allowed pretext searches in cases involving traffic arrests (State v. Fry; State v. King). Recently, the Madison Police Department has abandoned the practice in the wake of complaints by minorities and other citizens. But Milwaukee and other jurisdictions continue to use them. Or take the "no knock" policy. At the very least, the Fourth Amendment stands as a limit on police entry into the home or private property. The thought of police barging into one's home unannounced conjures up images of a police state. But drug dealers can be dangerous, so certain entries of a dealer's premises might justify unannounced entry in order to protect the police. In a 1994 case, State v. Stevens, the Wisconsin Supreme Court ruled that police may enter a "drug house" (a place where drugs are sold) without knocking, regardless of the facts of the situation. The very nature of the enterprise creates a presumption of danger, the court found. Recently the U.S. Supreme Court made a more cautious ruling in Wilson v. Arkansas. It ruled that the Fourth Amendment requires police to announce their presence unless they reasonably determine that an announcement would pose a danger. This ruling seems to limit the thrust of Stevens. But the U.S. Supreme Court refused to review the Stevens case, leaving the constitutionality of Wisconsin's blanket rule in doubt. Wisconsin's Stevens approach might sound reasonable, except that it ends up lumping all sorts of premises into the designation "drug house." The killing last April of Scott Bryant in Beaver Dam, WI provides an example. In that case, police burst into Bryant's trailer home, where he lived with his 7-year-old son, without knocking because they suspected Bryant of dealing drugs. An overeager officer, whose gun was drawn, mistakenly shot Bryant to death in a brief scuffle. Police found less than an ounce of marijuana in the trailer. In Madison, Bryant would have been subject to an ordinance violation--and an $86 fine--for that amount of pot. To be sure, it is unclear whether Bryant's trailer constituted a drug house under even the Stevens test. But the case serves as an example of what can happen when the Fourth Amendment's delicate balance between the need to protect police and to protect liberty and privacy tilts too far in favor of the police. The case of 61-year-old Donald Scott provides another disturbing example. Early one morning in 1992, a 30-man task force from the Drug Enforcement Agency and National Park Service broke into his ranch near Los Angeles because they thought that he sold marijuana. When he emerged from his room with a gun (he apparently had no idea who the intruders were), they shot him dead, point blank. No drugs were found. According to Jarett B. Decker, a criminal defense attorney in St. Paul who has written on the case, "Rumors of drug use by Scott's wife were enough to convince the agents that something might turn up." Federal agents resorted to similar tactics and demonization based on rumor in the now-famous Ruby Ridge assault on white supremacist Randy Weaver. Agents intentionally violated several established principles of proper law enforcement in killing his wife and child, and in forcing him to surrender.FOR THE LOVE OF FREEDOM Once the principle of equal justice is compromised, no one is truly secure. For if political or social judgments enter into the calculation of rights--i.e., suspected drug dealers or drunk drivers have fewer privacy rights than other citizens--we are all at risk. What can be done to restore more respect for the Fourth Amendment? For starters, we should reconsider how we are fighting the war on drugs. Drug use is a problem, but given the ways we are compromising fundamental rights in the fight, we need to consider the terrible price we are paying. More to the point, we need to renew our love of political freedom and justice, including a proper balance of rights and governmental power. Our task is to protect order without sacrificing rights. And the most fundamental right of all--the right the Fourth Amendment was designed to protect--is the right to be left alone. SIDEBAR: The Fourth Amendment--What it guarantees "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."