SUBTRACTING THE 4TH AMENDMENT, PART II

Search-And-Seizure Tactics Rape Liberty

Editor's note: This is the second of a two-part series on the drug war's
detrimental effect on the Fourth Amendment. While Part I focuses on the
danger of drug-courier profiles, Part II takes aim at unconstitutional
search-and-seizure tactics used by police in prosecuting the war on dope.

As Gaston County, N.C., parents and teens are discovering, the Fourth
Amendment has about as much legal importance to school administrators as a
forged doctor's note from an absentee student. While getting good
circulation in history lectures, the Bill of Rights apparently doesn't pull
enough weight to make it all the way to the parking lot.

That's because last Tuesday, Sept. 5, the county school board unanimously
endorsed a measure to randomly search high-school students' cars parked on
school grounds for things even worse than Eminem CDs -- guns, drugs, booze
and tobacco. "School safety experts and district officials," notes a Sept.
6 Associated Press report, "say they know of no other district in the state
that performs random searches of student cars without cause."

That's because it's illegal. Or should be.

The Fourth Amendment to the Constitution ensures -- even if you deserved an
"F" in high-school civics -- that searches and seizures of your person or
possessions can be made only with probable cause to believe that a crime
actually has been committed. But random searches are just that, random;
there's no cause at all, probable or otherwise.

Cause or no, however, school board officials defend the move by stressing
the safety need fulfilled by randomly rifling through students' cars.
According to board member Mary Robinson, quoted in the Sept. 6 Gaston
Gazette, "anything we can do to safeguard students is something we have to
do." Said another official: "Not to act would be criminal."

Never mind the fact that acting itself might be criminal.

James Otis knew too well how oppressive arbitrary governmental power can
be, protesting in February 1761 the search-and-seizure practices of the
British. While the Fourth Amendment requires "probable cause, supported by
oath of affirmation" along with a description of "the place to be searched,
and the person or thing to be seized," the Limeys had no such leash. In
Otis' day court officers could obtain general search warrants called Writs
of Assistance, which entitled them to browse through just about anybody's
house, books and sock drawer as aimlessly and indiscriminately as they
chose. Writs of Assistance were issued without the requirement of probable
cause or specified place to be searched; neither did the writ have a time
limit or requirement to return it to the court. It was, in short, a
perpetual license to harass.

That's certainly Otis' take: "Every one with this Writ may be a tyrant,"
he said, stating that "it is a power that places the liberty of every man
in the hands of every petty officer."

If a man has one of these licenses to harass, said Otis, he "is accountable
to no person for his doings. Every man may reign secure in his petty
tyranny and spread terror and desolation around him -- until the trump of
the Archangel shall excite different emotions in his soul."

Like many lessons taught by our founding fathers, however, "The right of
the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures," is something we have forgotten
in this drug-war induced haze in which we live.

Like British court officers in Otis' day, modern law enforcement
increasingly has little compunction when it comes to random, capricious
searches. The only difference is that many modern searches are done
without the insincere formality of a writ of assistance.

Want to search some guy but don't have probable cause? Want to violate
someone's Fourth Amendment-guaranteed privacy and just snoop around a
while, looking for something wrong? These days, drug cops live by the Nike
philosophy: Just do it.

In one recent Fourth Amendment case, Indianapolis police randomly stopped
cars looking for evidence of drug use and possession, without any
individual suspicion, just hoping to spot some dope -- a practice described
by Seventh Circuit Court of Appeals Chief Judge Richard A. Posner as a
definite no-no. Covering the case, Washington Post reporter Joan Biskupic
recounts, "Posner emphasized that the city was using the checkpoints as a
law enforcement tool, even though there was no reason to believe that the
various drivers stopped had done anything wrong. As such, he said, the
practice violates drivers' privacy in an effort to find some evidence of a
crime."

Does it matter?

Unlike Posner, some judges don't mind. "Crackdown: The Emerging 'Drug
Exception' to the Bill of Rights" is the title of a Hastings Law Journal
article in which the author argues that most any police action is
acceptable if it has something to do with drugs. All an officer has to do
is act in "good faith" as determined by a judge, and outrageous action and
illegalities can be, and often are, overlooked or excused. U.S. Magistrate
Peter Nimkoff of Miami agrees; when he resigned the bench in 1986 to
protest erosion of the Bill of Rights caused by the drug laws, Nimkoff
stated, there "are two constitutions -- one for criminal cases generally
and another for drug cases." He went on to say that such a view "invites
police to behave like criminals. And they do."

While discussing illegal searches and seizures, one thing should not be
overlooked: Like politicians, police do not always tell the truth. Assuming
that the officer wants to get a conviction against an individual, lying to
cover up an illegal search is not only easy, it is also not unheard of .
"There is substantial evidence," one criminologist notes, "to suggest that
police often lie in order to bring their conduct within the practices
sanctioned by judicial decisions." Indeed there is evidence.

As James Bovard recounts in his book, "Lost Rights," some 92 percent of
Chicago judges surveyed by Minnesota law professor Myron Orfield revealed
that they thought officers lied at least "some of the time." Orfield
further found that 22 percent of judges believed that officers lie in court
more than half of the time that they testify on Fourth Amendment
issues. "In fifty percent of small drug cases," one Chicago prosecuting
attorney responded to Orfield's survey, police "don't accurately state what
happens." Worse, 38 percent of judges surveyed believed that rank-and-file
officers are encouraged to lie in court by their superiors.

Reassuring?

The worst part about the misreporting and lying is summed up nicely by
criminologist Randy E. Barnett: "The only person who can usually
contradict the police version of the incident is the defendant, and the
credibility of the defendants does not generally compare favorably with
that of police officers."

Especially, I'll add, in a drug case.

Some officers, however, are not so naughty as to lie in court; out of
respect for the office of magistrate, they lie beforehand. Judge Nimkoff,
in a 1984 case, blasted a DEA agent who, as a last resort to nab a suspect,
obtained a search warrant by fudging the facts on an affidavit. With the
warrant, the agent was able to read confidential material (protected under
the Fourth Amendment) that, had he obeyed the law, he should have never seen.

At bottom, the issue isn't whether the confidential material had
incriminating evidence, or whether the individual indeed committed any
crimes. What's at issue is that, since the officer did not have sufficient
evidence for a warrant, he lied and fabricated evidence. The issue moves
beyond the incrimination of the suspect to include the incrimination of the
officer.

What kind of world do we live in that, in order to enforce some laws,
police must break other laws?

A dangerous world.

On the morning of Oct. 2, 1992, multimillionaire Donald Scott and his wife,
Frances, were jarred out of bed when the door of their Malibu, Calif., home
was battered down. Startled, Frances bolted the room and ran downstairs
where men with guns drew down on her. Donald, who was still recovering
from cataract surgery, heard his wife scream, "Don't shoot me. Don't kill
me." Racing to defend her, he grabbed his .38 pistol and half-blindly
raced to his wife. Seeing Donald emerge at the top of the stairs, gun over
his head, the armed men told him to drop the weapon. As he lowered it, Los
Angeles County Sheriff's Deputy Gary R. Spencer shot him to death -- two
bullets to the chest.

As bad as what actually transpired that autumn morning is, what preceded it
is worse.

For probable cause to justify his search and raid, Spencer claimed that
Scott was cultivating marijuana plants galore, growing thousands of them on
his back 40 -- or so an informant had told him. After a flyover a little
more than a week before the raid, a DEA agent claimed he saw (flying at
more than 1,000 ft., sans binoculars, mind you) 50 plants, which is a far
cry from thousands -- but no matter. After all, there was also the fact
that police sources claimed that Scott's wife had been seen with $100 bills
- -- something decidedly out of character for the wife of a multimillionaire,
I should think.

The evidence was hardly compelling, and Spencer probably knew it. As
Richard Miniter recounted in the February 1993 issue of Reason magazine, a
five-month investigation by Ventura County District Attorney Michael D.
Bradbury revealed that Spencer "obtained the search warrant for the raid by
withholding evidence and testimony from the judge who signed it. Ventura
Municipal Court Judge Herbert Curtis III was not told that a federal
reconnaissance team had found no drugs on Scott's land when they searched
parts of it on two occasions a week earlier. Furthermore, Bradbury said,
several of the affidavits used to support the request for a search warrant
were either false or misleading."

Spencer and Co. wanted to make a big bust. Ever so eager, they lied to a
judge and falsified affidavits. Instead of making a bust, however, their
lies resulted in making a widow.

In recent years, judges across the nation have been forced to dismiss cases
as they've discovered that officers' affidavits are misleading or simply
untruthful. Beyond fudging a few facts in a case, sometimes officers whose
search warrant requests are based on the word of unidentified informants,
lie about their sources -- in some cases fabricating "informants" out of
thin air.

The frightening aspect here is that in the 15 years between 1980 to 1995,
the number of federal search warrants granted on the basis of evidence from
unidentified informants skyrocketed from 24 percent to 71 percent. It
doesn't take Sherlock Holmes to figure out that any number of these
unidentified informants could be entirely fictional. Of 50 judges in
Alabama, Georgia and Tennessee, notes James Bovard, not one had ever
required an officer to produce an informant. For all we know these
officers could be moonlighting as creative writing instructors teaching
classes on short fiction.

What assuredly is not fiction is the rape of traditional American liberty
this drug war has caused. It should sit next to "Helter Skelter" in the
true-crime section at your local Barnes and Noble.

Vast power and authority have been ceded to law enforcement and government
with no care or concern for the outcome of such a transfer. So, people are
seized and harassed, their bags and persons searched, because they happen
to fit a profile of someone who might sell drugs.(/a) Others find police
officers illegally rummaging through their property and arresting them for
evidence of contraband that was illegally obtained. Of course, with a
decent lawyer, they stand a good chance of escaping prison for the
possession of the illegal goods because the Exclusionary Rule forbids its
use as evidence in court, but they will have their rights ignored and
stepped upon because of police misconduct.

Still others will have police illegally rummage through their property,
have their rights ignored, and maybe even get injured while being totally
innocent of any drug crime. And then there are those who will be subjected
to raids by police (much like home invasion robberies), perhaps be shot and
wounded, or killed, and later found to possess no illegal substances.

America's drug policy pulls the wheat up with the tares. It punishes the
law abiding along with the lawbreaker, carpet-bombing the whole of society
with laws and activity, hoping to squelch the behavior of a few citizens.
The administration of justice has become an arbitrary court where law
enforcement can pick its victims at random and prosecute them without
mercy. That, sane people should recognize, is a greater cause for fear than
rampant drug use.

"Nothing," once said Milton Friedman, "scares me about the notion of drugs
being legal. ... What scares me is the notion of continuing on the path
we're on now, which will destroy our free society."

It should scare all of us.