Is the Liberty Provided by the 4th Amendment a Figment of Your Imagination?
Quoting Supreme Court Justice Tom Clark:
“”The criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.“
Most Americans have a perception of the 4th Amendment that seems to not be based in reality, at least not in a reality that currently exists. Most Americans think that a search warrant is to be given to the resident of a home before the search takes place and that the search warrant is properly executed by a judge with an description describing for what or whom the searched is being conducted.
Most Americans think they have a right to know why their person, vehicle, or home is being searched by the government.
The forth Amendment:
“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 does not seem to be true at all according to this:
UNITED STATES, PETITIONER v. JEFFREY GRUBBS
on writ of certiorari to the united states court of
appeals for the ninth circuit
[March 21, 2006]
“Justice Scalia delivered the opinion of the Court….”
“….Second, respondent argues that listing the triggering condition in the warrant is necessary to ” ‘assur[e] the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search.’ ” Id., at 19 (quoting United States v. Chadwick, 433 U. S. 1, 9 (1977)). The Ninth Circuit went even further, asserting that if the property owner were not informed of the triggering condition, he “would ’stand [no] real chance of policing the officers’ conduct.’ ” 377 F. 3d, at 1079 (quoting Ramirez v. Butte-Silver Bow County, 298 F. 3d 1022, 1027 (CA9 2002)). This argument assumes that the executing officer must present the property owner with a copy of the warrant before conducting his search. See 377 F. 3d, at 1079, n. 9. In fact, however, neither the Fourth Amendment nor Rule 41 of the Federal Rules of Criminal Procedure imposes such a requirement. See Groh v. Ramirez, 540 U. S. 551, 562, n. 5 (2004). “The absence of a constitutional requirement that the warrant be exhibited at the outset of the search, or indeed until the search has ended, is … evidence that the requirement of particular description does not protect an interest in monitoring searches.” United States v. Stefonek, 179 F. 3d 1030, 1034 (CA7 1999) (citations omitted). The Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the “deliberate, impartial judgment of a judicial officer . . . between the citizen and the police.” Wong Sun v. United States, 371 U. S. 471, 481-482 (1963), and by providing, ex post, a right to suppress evidence improperly obtained and a cause of action for damages. …”
An example of state level government’s disregard for the 4th Amendment:
An example of federal level government’s disregard for the 4th Amendment:
Moe Lane wrote this piece last Wednesday about The Department Of Education’s violent raid on Kenneth Wright’s home in Stockton California.
When Mr. Lane posted this article, I was busy tracking down information about it and I was hoping to get to interview Mr. Wright on my Saturday radio show. I found out that Mr. Wright had hired an attorney. The attorney found out I was asking around about the case so he called me to tell me Mr. Wright would no longer be talking to anyone about the case. He, on the other hand, had no qualms with discussing the case in detail and was able to answer a lot of questions many of us had regarding the warrant. He agreed to call into our radio show on Saturday. We dedicated the entire hour to this call.
This show aired on WMPS The Point 87.7 FM in Memphis on Saturday June 11th from 2-3pm. While I was on the way to the radio station, my son was injured so I was diverted to the hospital. The other host, Donn Janes, talked with Mr. Wright’s attorney Mr. Mark Reichel about Mr Wright’s home recently being searched by the Department of Education. The interview is about thirty minutes long and well worth the time to listen. Calling in from a cell phone made for a less than optimal recording. Reichel was stuck in LA traffic and had little other choice.
Not only is Mark Reichel Kenneth Wright’s attorney, he also is the attorney that argued the above mentioned case for Grubbs in front of the United States Supreme Court in 2006, UNITED STATES v. GRUBBS.
In an added note made by Reichel, and the most disturbing part of this interview for me came in the latter portion of the show where Reichel talks about the cable company installing equipment in his child’s bedroom. He speculates that this was an action by the the Department of Education that would be legal if they were using provisions provided by the Patriot Act.
Isn’t the Patriot Act supposed to be used to protect Americans against terrorists? Wasn’t that what was sold to the American people?
The notion of a right to the securities mentioned in the 4th Amendment to the Constitution seems to be false. I think that at least this is currently the case. Whether or not the Patriot Act was used in regards to Mr. Wright’s home is really beside the point. The Patriot Act was supposed to be a security tool to be used against foreign agents who would not normally be protected by the U.S. Constitution anyway. If it had been designed to only allow that, it might not be such a bad thing. Unfortunately, it is just one more case of government not letting a crisis go to waste and is a power grab against it’s citizens.
If, in fact, The Department of Education could use the Patriot Act in a case like this, it would show that the Patriot Act has effectively decimated the 4th Amendment. The government will have shown a “disregard of the charter of its own existence” therefore undermining the entire Constitution and our nation as a whole.