Rights, Warrants, and Consent

Getting back on track in this series, we left off a couple of weeks ago about to discuss rights, warrants and consent.

To start this topic, which we will only brush the surface, consider where these rights are memorialized. I say memorialized intentionally because the founders believed these rights are inherent, that is we are born with them. They are memorialized in the 4th Amendment to the Constitution of the United States. Every state Constitution has its own version of this amendment. The Amendment states the every person has the right to be secure in their persons, places and effects against unreasonable searches and seizures. Further that no search nor seizure shall occur except by a warrant issued by a judge on a showing of probable cause particularly describing the place to be searched or the person or thing to be seized.

So the Constitution has very specifically defined how these rights are to be protected. You can read the actual Amendment and you will notice there are no exceptions to its requirements.

There is an anecdote I once heard that Justice Oliver Wendell Holmes was asked why there were no Supreme Court cases on the 4th Amendment. He supposedly stated that the Amendment was so direct in its pronouncement and so clear in its prohibitions that no such case were ever necessary. Today there tens if not hundreds of thousands of cases on the 4th Amendment.

Oddly, there is only one case which gets the bulk of criticism. That is the “exclusionary rule”. This rule arose from the U.S. v. Weeks case in 1913 and was later found applicable to state cases in Mapp v. Ohio. This rule states succinctly, if the police illegally obtain the evidence then it is inadmissible in court against the accused. The criticism is that it may let the guilty escape conviction by keeping out evidence which could prove guilt. But the criticism is short sighted and misses the bigger issue. The critics would permit official illegal conduct to prevail against the citizen. If the government is to be the bearer of the mantle of justice then it must play by the same rules as it holds its citizens. When the government becomes the law breaker there must be some accountability and the Supreme Court in those cases found exclusion as the mechanism to do that. Unfortunately, since Mapp was decided in 1961 there has been a large scale retreat from its mandate and there have been several attempts to eliminate the rule altogether.

On the other hand, many cases have given the police greater lattitude to search and seize without consulting a magistrate or judge before doing so (the term police is used generically and includes all types of law enforcement agents state or federal) . Some such “exceptions” are the “automobile exception”, “officer safety exception”, exigent circumstances exception”, “officer probable cause belief exception” and finally consent.

Yet, like the exclusionary rule, none of these exceptions appear in the Amendment. These are judge made exceptions. They expand the powers of the police in ways not envisioned nor permitted by the Constitution.

Of these exceptions the only one you as the citizen have at your disposal is consent. Because of its extensive use by the police, it is the one you are most likely to encounter if you have a police contact. However, it will probably be presented to you in a most casual manner, which disguises its intent and scope. Borrowing from the anti-drug use campaign, Just Say No. The most frequent application of the consent request is to motorists stopped for some trivial traffic violation. After being advised they are only getting a warning, the questioning shifts to the contents of the car or other vehicle. Whether there is anything illegal in the vehicle and can the officer “take a quick look”. This search has nothing to do with the alleged traffic violation and every driver and passenger should Just Say No. At the point of being asked for consent you are legally free to go, as you should have already been given your license, registration and insurance documents back. Tell the officer to have a nice day and leave.

I say that, especially if you are innocent of any illegal activity. We do not live in a police state where we need permission to go about our normal lives. Do not take the bait that “if you have nothing to hide”. That is a phony analogy. Ask the officer if you can come watch him and/or his wife bath, if they have nothing to hide. That hyperbole demonstrates the irrelevance of the “nothing to hide” bait, its not about hiding its about your rightful privacy and an invasion without cause by the police.

So, in summary, the police legally need a warrant according to the Constitution, can get by sometimes on one of the court made exceptions or get your consent. Never give up a right needlessly. These are your rights, use them or lose them. Be safe and be aware.