Thursday, June 15, 2006

News Like This Makes Me Glad We Left When We Did

When we made our decision to move back to Ireland, our deciding factors were all of the personal nature: family, friends, a certain aspect of quality of life. As desperate as I felt in November of 2004 after the Presidential Election, our move was not a political one. Even so, there was a sense that America was changing - a chill wind was in the air. Our leaving had the fringe benefit of getting away from constant news coverage of the bumbling Dubya and his one-man crusade to ruin the country of my birth.

Today, the newly stacked Supreme Court ruled that it's permissable for police with a search warrant to enter a private residence without knocking. Forget about being secure in your house. As long as the police have the requisite warrant, they can forgo a basic practice of courtesy and respect for your property and privacy.

In the case, Hudson v. Michigan, the police executed a warrant by announcing themselves, then entering the premises 3 to 5 seconds later. This was in violation of the customary "knock and announce" rule, which required police to knock, announce their intentions, and then wait 20 to 30 seconds before busting in. (Unless, of course, they found themselves in extenuating circumstances.) In the majority opinion, Justice Scalia wrote:

"What the knock-and-announce rule has never protected...is one's interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable."

Scalia's logic is that if the cops had followed the rule, they still would have found the gun and drugs. Just because the cops didn't completely follow the "knock and announce" rule, the defendant shouldn't be entitled to a get-out-of-jail-free card.

I have so many problems with this decision, I don't even know how to organise them. Let's start with the obvious. Conservatives like Scalia are far too willing to read the Second Amendment literally but then cut corners and erode liberties on freedoms enumerated in the First and Fourth Amendments. (Although, I guess if the government can burst into your house whenever a judge says "okay by me," then maybe guns are necessary for protection.)

I'm not a historian or a consitutional scholar, but I do know a little bit about the Constitution. The Founding Fathers had a healthy dose of skepticism about goverment and an abiding distrust of monarchs who exercised their power unilaterally and without safeguards. The Consitution, with its three branches of government and checks and balances, is an elegant and amazing document. The Bill of Rights takes the Constitution that one step further in the protection of the citizenry.

The Founding Fathers believed in the concept of negative rights. The rights enumerated are protection from the government. They're "freedoms from" more than they are "freedoms to." Seems to me like any reading of the Fourth Amendment has to say that it's completely unreasonable to permit the police to burst into your home without announcing themselves.

Now, I know there's someone out there saying "What about the warrant?" What about the warrant? What do the police really need to get a warrant? A judge that's willing to sign on. Oh, sure, they need some grounds but they don't have to actually prove anything.

The government and its various agents, like the police, have the upper hand in every situation. That's good - it keeps us from sliding into chaos and anarchy. But governments in and of themselves are not inherently good. They must abide by certain procedures and safeguards to ensure that citizens are protected.

Every time one of these basic protections is removed, the government becomes a bit more powerful. And with power comes the potential for abuse and corruption. You don't have to be a whacko conspiracy theorist or a suspense novelist to imagine a scenario in which allowing the police to enter a house unannounced would be a Bad Thing.

I also have a huge problem with Scalia's logic that the police would have found the items anyway, so they guy was guilty so we can't let this guy off on a technicality. Guess what? Technicalities might be the only thing that one day, protect you from getting railroaded by the judicial system. The thing about Constitutional law is that not every defendant is Rosa Parks or the kids in Brown vs. The Board of Education. Some of them are absolute scumbags.

But the whole thing about America is "Justice For All." It's not "Justice if You Are of the Right Socio-Economic Class." It's not "Justice if You Are Innocent." It's not "Justice if You Are White." We don't have two separate sets of laws - one for the innocent and one for the guilty. Everyone is innocent until they are proven guilty beyond reasonable doubt, in a court of law, with due process.

This might seem like a little thing, but it's not. It's a symptom of larger problems in America.

7 Comments:

At 16 June 2006 at 06:12, Blogger Lex Fori said...

Why didn't you stick with law again?

Oh yeah, that's right, you're sane.

 
At 16 June 2006 at 10:15, Blogger Fence said...

Not to worry you, but usually we do ape the US in a lot of its decisions.

 
At 16 June 2006 at 18:23, Blogger Shane said...

I beleive the system and everything in it from the President to the local cops is corrupt to a certain extend. But that's why I don't commit crimes nor do I remain in the company of criminals and I pay my taxes. I've heard horror stories about the legal system and how unfair it is. For some people like me it is a crime deterrent. For example, if I hear that the local police are cruel and casual about their use of the taser -- then I'm certainly going to think twice about drinking and driving. Perhaps I'll be more interested in protesting their actions if they start going into homes randomly, without cause or knocking and zapping residents. But I don't see that happening.

 
At 16 June 2006 at 20:39, Blogger -Ann said...

Lex - Sanity is in the eye of the beholder, I think. I just had a very low bullshit and assholery threshold.

Fence - I'm not too worried. I hate to make sweeping generalisations but I think the Irish have a much more developed sense of privacy and the importance of its protection than Americans do.

Shane - If the police bust into your house and zap you, don't come crying to me. :)

 
At 17 June 2006 at 03:45, Anonymous Anonymous said...

Not knocking is the best idea I have ever heard of.
Two facts need to be considered:
1) The police have a search warrant to search the house, thus satisfing the right to due process under the law
2) The purpose of not knocking is to give law enforcement discretion when it comes to their own safety.

Proponents of this must-knock policy are forcing police officers to needlessly endanger their lives if they execute search warrants.

The criminal in this case ILLEGALY HAD A LOADED GUN in his possession. The police used their discretion and were right to do so.

Knock and announce only gives criminals the opprotunity to destroy evidence or to gain the upperhand in a possible confrontation.

I remember when a police officer in Phoenix, AZ was shot and killed (I think 2000) when he was required to announce his intention to enter a house with an open door during the execution of a warrant to confiscate the firearms of a domestic abuser (per court order). He was shot dead his first step through the door.

Stupid..Stupid..Stupid rule that is not justified.

 
At 17 June 2006 at 22:56, Blogger Fence said...

And if a police officer breaks in the door without annoucing himself, thereby making the occupier think that a break and entry is occuring and so the occupier runs to find gun and shoots police officer dead, what happens then?

And the award for most unstructured sentence goes to...

 
At 22 June 2006 at 21:23, Blogger -Ann said...

I think Fence makes a good point.

I think anonymous makes a pretty decent point as well. But it still does not sway me from my opinion.

The profession of a cop is a dangerous one and each individual takes that risk when they sign up for the job. I don't think you can then use that risk to justify weakening the protections of individual citizens.

The whole point of the 4th Amendment in particular and the Constitution in general is to protect the citizens from the government. As Breyer wrote in his dissent:

"Why is application of the exclusionary rule any the less necessary here? Without such a rule, as in Mapp, police know that they can ignore the Constitution's requirements without risking suppression of evidence discovered after an unreasonable entry. As in Mapp, some government officers will find it easier, or believe it less risky, to proceed with what they consider a necessary search immediately and without the requisite constitutional (say, warrant or knock-and-announce) compliance."

I don't think I could say it any better than that. (And for all you non-Constitutional Law scholars, Mapp is a 1961 decision that essentially rules that cops can't go on fishing expeditions, in violation of the 4th Amendement. http://en.wikipedia.org/wiki/Mapp_v._Ohio)

 

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