The Changing Face Of The Police And The Death Of The Fourth Amendment

In early America, citizens were considered equals with law enforcement officials. Authorities were rarely permitted to enter one’s home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen’s home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant – which the police had to allow citizens to read before arresting them. (Daring to dispute a warrant with a police official today who is armed with high-tech military weapons and tasers would be nothing short of suicidal.) This clear demand for a right to privacy was not a byproduct of simpler times. Much like today, early Americans dealt with problems such as petty thievery, murder and attacks by foreign enemies. Rather, the demand for privacy stemmed from a harbored suspicion of law enforcement officials and the unbridled discretion they could abuse.

The Fourth Amendment, which assures that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," was included in the Bill of Rights in response to the oppressive way British soldiers treated American colonists through their use of "Writs of Assistance." These were court orders that authorized British agents to conduct general searches of premises for contraband. The exact nature of the materials being sought did not have to be detailed, nor did their locations. The powerful new court orders enabled government officials to inspect not only shops and warehouses, but also private homes. These searches resulted in the violation of many of the colonists’ rights and the destruction of much of the colonists’ personal property. It quickly became apparent to many colonists that their homes were no longer their castles.

Revolutionary patriot James Otis was Advocate-General when the legality of these warrants came under question by the colonists. Called upon to defend that legality, he promptly resigned his office. After living through an age of oppressive policies under the British empire, those of the founding generation, such as Otis, wanted to ensure that Americans would never have to face intrusive government measures again.

Fast forward 250 years and we seem to be right back where we started, living in an era of oppressive government policies and a militarized police whose unauthorized, forceful intrusions into our homes and our lives have been increasingly condoned by the courts. In fact, although the Fourth Amendment’s protections against unreasonable searches and seizures go far beyond an actual police search of your home, as I detail in my commentary, "Renewing the Patriot Act: Who Will Protect Us from Our Government?" the passage of the USA Patriot Act opened the door to other kinds of invasions, especially unwarranted electronic intrusions into your most personal and private transactions, including phone, mail, computer and medical records. When added to this list of abuses, two recent court decisions – one from the U.S. Supreme Court and the other from the Indiana Supreme Court – both handed down in the same week, sound the death knell for our Fourth Amendment rights.

In an 8-1 ruling in Kentucky v. King, the U.S. Supreme Court effectively decimated the Fourth Amendment by giving police more leeway to break into homes or apartments without a warrant when in search of illegal drugs which they suspect might be destroyed if notice were given. In this particular case, police officers in pursuit of a suspect they had seen engage in a drug deal in a parking lot followed him into an apartment complex. Once there, the police followed the smell of burning marijuana to an apartment where, after knocking and announcing themselves, they promptly kicked the door in – allegedly on the pretext that evidence of drugs might be destroyed. Despite the fact that it turned out to be the wrong suspect, the wrong apartment and a violation of every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, saying that police had acted lawfully and that was all that mattered. Yet as Justice Ruth Bader Ginsburg, the lone voice of dissent among the justices, remarked, "How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and ... forcibly enter?"

In the second case, the Indiana Supreme Court actually stepped beyond the constitutional parameters of the case before them to broadly rule in Barnes v. State that people don’t have the right to resist police officers who enter their homes illegally. The court rationalized their 3-2 ruling legitimizing any unlawful police entry into a home as a "public policy" decision. On its face, the case itself is relatively straightforward: An Indiana woman called 911 during an argument with her husband. When the police arrived, the man blocked and then shoved an officer who tried to enter his home without a warrant. Despite the fact that the wife told police her husband hadn’t hit her, the man was shocked with a stun gun and arrested. Insisting that it would be safer for all concerned to let police proceed even with an illegal action and sort it out later in court with a civil lawsuit, the court held that residents can’t resist police who enter their home – whatever the reason. The problem, of course, is that anything short of complete and utter acquiescence and compliance constitutes resistance. Thus, even the supposedly protected act of free speech – a simple "Wait, this is my home. What’s this about?" – constitutes resistance.

Many are understandably up in arms about these decisions, but the courts are not really introducing anything new into our lives – they are merely reflecting and reinforcing the reality of the age in which we live, and that is one in which the citizen is subordinate to government and what the "state" – be it the police, the schools or local or federal agents – says goes.

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