It has been sometime since I last had the opportunity to discuss your rights with you, as memorialized by the Constitution, specifically the Bill of Rights. I would like to continue to discuss with you the protections which you have under the 4th Amendment. For convenience that amendment states:
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.
Up until the 20th Century there were very few cases decided by the U.S. Supreme Court interpreting this amendment. It is asserted that Justice Oliver Wendell Holmes once explained this minimal caselaw as being the product of amendment which was so clear in its pronouncement and certain in its prohibition that such judicial intervention was unnecessary.
I won’t burden this monograph with case citations other than the occasional abbreviated case name, but we will see how this amendment and your rights under it have been altered, limited or otherwise changed in the last 100 years. To a point I would venture that Justice Holmes would be apoplectic or at least greatly troubled.
We will look at the various levels of intrusion which the government (federal, state or local) can intrude into your daily activities affected by the 4th Amendment. The amendment addresses four specific places we have the right to be secure from unreasonable search. Specifically in our “persons, houses, papers and effects” but what does this mean to you in your daily life. What is an unreasonable search? What are “effects”? Which “papers”? What about the other have of the right, the unreasonable seizure?
Can the police choke you into throwing up to obtain evidence they think you have swallowed? (This actually happened) No they legally cannot, but it took the Supreme Court in 1952 to say so in Rochin. That would be one instance of being secure in one’s own person. But does “person” encompass a broader or more expansive area than ingestion. What about your coat or pants or shirt pockets, those are also part of your person due to the intimate connection between those items any your body.
Who determines what is unreasonable? Are there times which a search is permitted on less than probable cause and without involvement of a “neutral and detached magistrate”? When a drug dog sniffs around a stopped car trying to detect the odor of some illegal substance, is that a search? Can the police use thermal imaging to peer into your home? What is the legal status of your computer or “smart” phone? What rights do you have in today’s complicated, exception riddled, 4th Amendment world?
These are the issues which I hope to take up with you over the next several weeks. To enlighten your knowledge and provide you with some basis for understanding the criminal justice system. I do not do this as your legal counsel or in any way to act as your representative. However, this information is intended to help you navigate any contacts which you may encounter with law enforcement. Your first choice should, as I have stated previously, be to retain competent counsel at that time.
As always these are your rights, use them or lose them.