The 4th Amendment: It's supposed to be more than a slogan
by Richard Barbuto
I think it is not out of line to suggest that the founding fathers had some concerns about general warrants and other search and seizure issues and, as a result, enacted the 4th Amendment to the United States Constitution.
That amendment has some catchy little sayings. Things such as "no warrants shall issue" and "probable cause" and other equally amusing phrases. The trouble with the 4th Amendment is that it does not get the respect that other amendments in the Bill of Rights get. It is sort of like the poor relation in the amendment family. I come to this conclusion because it seems that courts are always trying to carve exceptions out of it. If you look at the history of this amendment you come across just all kinds of exceptions. We have searches incident to arrest, searches due to exigent circumstances and automobile searches to name a few. And don't even get me started on the Foreign Intelligence Security and Patriot Acts.
One of my favorites is the "consent" exception to the general rules surrounding search and seizure. That's the exception where, for example, a person cheerfully opens a bag containing kilos of cocaine knowing that he is facing prison for the rest of her life. And all this just because a police officer politely asked for her consent to search the bag. Or when a team of officers comes to the door of a home and are seemingly invited into the home and just happen to see some damning evidence in "plain view" (another exception) which piggy backs nicely onto the "consent" search. Serendipity abounds.
Now I can almost hear you saying-But I would not consent. I have rights. Before you go down that road do something for me. Shut yours eyes and remember how nervous you were the last time a law enforcement officer stopped you for the most trivial thing. If you are like the rest of us you were nervous and upset and maybe even wanted to please the officer a little bit. This is what I think of as the "consent advantage" that the police have.
Lat's take another look where the subject of the search is a 17 year old, or a person not versed in the majesty of the law. What do you think happens here? You bet. Consent. Now the police produce a pre-printed form and tell the subject sign here so later on there will be evidence that you consented to his friendly intrusion into your life.
So now someone gets arrested and a hearing is held before the trial to see if the government can use the property seized against you because you consented to the search. Your lawyer will intone elegant words such as "there is a heavy burden on the government to prove consent" and the prosecutor will call at least one police witness to tell the judge of the circumstances surrounding the search and by the way, the defendant consented to the search in writing. The heavy burden vanishes and the seized property is declared to have been legally obtained. Rubbish. If the consent is the cake then the writing is the frosting. But if there was really not any consent then the frosting is meaningless. So not only do we have an exception to the 4th amendment we can also see how easily the exception can be twisted into something it never was.
Isn't the law grand?
That amendment has some catchy little sayings. Things such as "no warrants shall issue" and "probable cause" and other equally amusing phrases. The trouble with the 4th Amendment is that it does not get the respect that other amendments in the Bill of Rights get. It is sort of like the poor relation in the amendment family. I come to this conclusion because it seems that courts are always trying to carve exceptions out of it. If you look at the history of this amendment you come across just all kinds of exceptions. We have searches incident to arrest, searches due to exigent circumstances and automobile searches to name a few. And don't even get me started on the Foreign Intelligence Security and Patriot Acts.
One of my favorites is the "consent" exception to the general rules surrounding search and seizure. That's the exception where, for example, a person cheerfully opens a bag containing kilos of cocaine knowing that he is facing prison for the rest of her life. And all this just because a police officer politely asked for her consent to search the bag. Or when a team of officers comes to the door of a home and are seemingly invited into the home and just happen to see some damning evidence in "plain view" (another exception) which piggy backs nicely onto the "consent" search. Serendipity abounds.
Now I can almost hear you saying-But I would not consent. I have rights. Before you go down that road do something for me. Shut yours eyes and remember how nervous you were the last time a law enforcement officer stopped you for the most trivial thing. If you are like the rest of us you were nervous and upset and maybe even wanted to please the officer a little bit. This is what I think of as the "consent advantage" that the police have.
Lat's take another look where the subject of the search is a 17 year old, or a person not versed in the majesty of the law. What do you think happens here? You bet. Consent. Now the police produce a pre-printed form and tell the subject sign here so later on there will be evidence that you consented to his friendly intrusion into your life.
So now someone gets arrested and a hearing is held before the trial to see if the government can use the property seized against you because you consented to the search. Your lawyer will intone elegant words such as "there is a heavy burden on the government to prove consent" and the prosecutor will call at least one police witness to tell the judge of the circumstances surrounding the search and by the way, the defendant consented to the search in writing. The heavy burden vanishes and the seized property is declared to have been legally obtained. Rubbish. If the consent is the cake then the writing is the frosting. But if there was really not any consent then the frosting is meaningless. So not only do we have an exception to the 4th amendment we can also see how easily the exception can be twisted into something it never was.
Isn't the law grand?
0 Comments:
Post a Comment
Subscribe to Post Comments [Atom]
<< Home