RESIST INSIDIOUS SEARCHES

How does it happen? How does freedom get taken from a people for whom
it's a birthright without any fuss, without any outcry?

Only with the best of intentions.

As the U.S. Supreme Court opens its term Monday, a cattle car of good
intentions will be pitted against a few constitutional principles,
some of which are hanging on for dear life. There are two cases in
particular that have the potential of nailing the coffin shut on our
Fourth Amendment right to be free from dragnet searches, where entire
populations are searched just to see if anyone has violated the law.

So, please, let's all pay attention.

One case involves a municipal hospital in Charleston, S.C., which,
with the cooperation of local law enforcement initiated a policy in
1989 of testing certain pregnant women for the presence of cocaine.
The motives of the hospital were unimpeachable - to protect the unborn
babies - but the urine test was done without the informed consent of
the mothers who were mostly poor and black. Any woman testing positive
for illicit drugs was arrested. Some were carted off to jail in
shackles, still bleeding from giving birth. Others were jailed until
they went into labor, then sent to the hospital in handcuffs.

With the help of public interest groups, 10 of these women sued on the
grounds that their constitutional tights were violated when their
bodily fluids were searched without their consent or any evidence they
had engaged in a criminal act.

The city of Charleston said its hospital shouldn't need probable cause
to do a urinalysis. It argued the primary purpose of the drug screen
was not the criminal prosecution of drug-abusing mothers but the
protection and health of viable fetuses and should therefore fall
under the "special need" exception to the Fourth Amendment.

In 1999 a federal appellate court agreed, and the appeal of that
ruling will be heard by the U.S. Supreme Court on Oct. 4 in the case
of Ferguson vs. City of Charleston.

What is this "special need" exception to the Fourth
Amendment?

Ifs a concocted legal doctrine designed to give the court cover
whenever it gouges our rights.

Arguably the most important protection we have against abusive police
practices is our right to demand that every search by government is
justified by evidence of individual guilt The "special need" exception
obliterates this by allowing dragnet searches if they are intended to
address an important public purpose that isn't related to crime
detection. The doctrine has been used to approve universal drug
screens for high school athletes and roadblocks to ferret out illegal
immigrants and drivers who are intoxicated.

If that sounds like sophistry, it is.

Of course catching drunken drivers in a roadblock has a public-safety
function, but it is also a way to enforce the law. The protection of
public safety is the function of virtually every criminal law. So
approving an exception to probable cause for public safety is like
carving the Fourth Amendment into a Halloween jack-o-lantern -- the
center has been hollowed out and the teeth are an illusion.

The other case before the court to be argued Tuesday, takes the issue
of how far the government can go with suspicionless searches even further.

In City of Indianapolis vs. Edmond, city police followed the example
of other cities and states, including Florida, by setting up a drug
interdiction roadblock. Police would stop motorists, demand their
licenses and registrations, peer into the cars interiors and escort
drug-sniffing dogs around the cars. The checkpoint was not based on
any particulized suspicion -- anyone driving along that road could be
detained until he satisfied police of his innocence. Of the 1,161 cars
stopped, 55 led to drug-related arrests.

The city argues this roadblock should be deemed constitutionally valid
since it isn't much different from those set up to catch drunken
drivers. Its purpose, after all, is public safety, to keep drugs off
city streets.

Well if a car-to-car search is acceptable to find drugs, why not go
house-to-house? Why not make "public safety" the government ,
equivalent of "open sesame"? While it would be nice to have drug-free
streets, giving up all constraints on police is too high a price.

Joe Upstanding may have little interest in the rights of addicted
mothers and drug dealers, but at some point he's got to start
realizing that whence go their rights so go his.

Our collective neglect has already contributed to a reality in which
police and other agencies of government have license to invade our
privacy in all manner of ways without a whit of justification.

And it can get worse. Without our vigilance, without our demanding
that justices who care about civil liberties be put on the bench, an
authoritarian nightmare will continue to be built on good intentions.

And well only have ourselves to blame.