EROSION OF THE FOURTH AMENDMENT

The Fourth Amendment guarantees "the right of the people to be secure in
their persons, houses, papers, and effects, against unreasonable searches
and seizures."

As such, intrusive searches by police usually require a judge's approval.

But the U.S. Supreme Court seems intent on stripping the Fourth Amendment
of the protections it is supposed to afford us. In too many cases in recent
years, the court has favored law enforcement's discretionary power over the
privacy interests of individuals. The court did so again last week when it
overturned a Florida Supreme Court decision that disallowed the
unauthorized seizure of a car once thought to have been used in a crime.

THE CASE GREW from the investigation of a suspect whom authorities watched
deliver cocaine in his car. Two months later, police arrested the man at
his workplace on unrelated charges. After his arrest - but without a
warrant - they seized the suspect's car, searched it and found a piece of
crack cocaine.

The suspect, who was charged with possession of a controlled substance,
moved to suppress the evidence as a violation of the Fourth Amendment. Two
courts allowed the evidence to be considered before the Florida Supreme
Court declared the search invalid.

The Florida court's reason made perfect sense: "There is a vast difference
between permitting the immediate search of a movable automobile based on
actual knowledge that it then contains contraband and the discretionary
seizure of a citizen's automobile based upon a belief that it may have been
used at some time in the past to assist in illegal activity."

But the U.S. Supreme Court last week disagreed, saying that despite the
two-month delay, the officers had cause to believe the car was used in a
crime and was thus subject to the Florida Contraband Forfeiture Act.
Furthermore, the car itself was contraband and so was subject to search and
seizure without a warrant.

Forfeiture is punishment much like a fine; it is supposed to discourage
crime because it subjects criminals to personal penalties. But it is a
process that is too often abused.

Under the Florida law, officers are able to confiscate tools, weapons,
cars, machines, money and real estate that has been used in committing a
felony or that was acquired through felonious activity. But the law is also
used by police and municipal authorities to enrich their operations.

The high court's reversal in the Florida case "encourages further shortcuts
by police in the interest of merely building up their own property
inventories at the expense of American citizens," said William B. Moffitt,
president-elect of the National Association of Criminal Defense lawyers.

It is true the police could have obtained a warrant and still waited two
months to make the seizure, but it seems to us that the state's ability to
decide unilaterally that a car is contraband because of its past use is
ample reason for insisting on an appraisal of the evidence by a neutral judge.

Although the U.S. Supreme Court has not disavowed the warrant presumption
associated with the Fourth Amendment, this decision suggests, as Justice
John Paul Stevens wrote in dissent, "that the exceptions have all but
swallowed the general rule." That proposition is something that should
worry all of us.