WHAT, US WORRY?

"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...."

- - From The Fourth Amendment To The U.S. Constitution

Yale legal scholar Akhil Reed Amar has said that the Fourth Amendment "is a
priceless constitutional inheritance, but we have not maintained it well."

You'd never know it to hear First and Second amendment advocates, but the
Fourth has taken a much worse beating than either of those in recent years.
Fears about rising crime rates (even when they're falling), the
government's ineffectual "war on drugs," and frustration at criminals being
let off because of "technicalities" may be a few reasons why so many
Americans have grown complacent.

Just last week, the U.S. Supreme Court took another whack at the Fourth
Amendment. In a 5-4 vote that curiously teamed a more liberal justice, a
swing voter and a troika of hardcore conservatives, the court ruled that it
is not "unreasonable" to haul a citizen to jail for a minor traffic infraction.

Police in Texas stopped Gail Atwater in 1997 when they saw her children not
wearing seatbelts. He searched the truck, finding nothing, then handcuffed
the woman and jailed her. Eventually, Atwater pleaded guilty - to a $50
traffic violation.

This was "inconvenient," the majority wrote, but it was "not so
extraordinary as to violate the Fourth Amendment." The officer was merely
"rude."

Rude? And we thought police who harassed citizens and hauled them to jail
for minor infractions were confined to places where guys with "General" in
their names rule with an iron fist.

Justice Sandra Day O'Connor, writing for the minority, was right in
declaring that the decision "carries with it the grave potential for abuse"
by police.

This isn't the only erosion of the Fourth in recent decades. Since the
1960s, when the Supreme Court imposed the judicial sanction of evidence
suppression to curb police search and seizure abuses, things have (mostly)
gone the other way.

Among the changes: Police now can conduct a search and come to a judge to
demonstrate probable cause after the fact. Vehicles, under the Rehnquist
court, have become an "exigent circumstance," meaning that protections
against searches are limited (and prosecutors would love to add drugs and
weapons as "exigent circumstances"). Border searches, drug testing ... the
list goes on.

In fairness, the Supreme Court also has reined in police power on other
cases, as in recent decisions against drug-testing pregnant women without
their knowledge and random drug checkpoints in Indiana.

But the prevailing tilt has been in the other direction. Another recent
decision, for example, allows police to prevent suspects from entering
their homes - in effect seizing the home - while they cobble together a
search warrant.

In fact, Amar argues, the problem isn't simply erosion. Rather, it's that
the court has made an indecipherable jumble of what constitutes legal
search and seizure, which has resulted in both guilty criminals going free
on "technicalities" and an erosion of average citizens' rights.

Why has the American public been so silent about this unsettling trend?
Perhaps it's because we imagine this kind of thing happens only to others -
we aren't harboring drugs, after all, and by golly, in Boulder, we buckle
up our children. Anyway, only people who have something to hide have to
worry about all this ... right?

Perhaps. But our complacency recalls the old story about the Protestant
minister and the Nazis. When they came for the Jews, the Catholics, the
socialists, the homosexuals, the Gypsies and so on, the minister kept
silent, because he belonged to none of those groups. And by the time the
Nazis came for him, there was nobody left to stand up for his rights.