IF ALL SEARCHES ARE REASONABLE THE STATE HAS ABSOLUTE POWER

In 1998, the Detroit police, armed with a warrant, conducted a search
of Booker T. Hudson's home. The police announced themselves but did
not knock. They waited a few seconds, entered his home, and seized
drugs and a gun. End of story, right?

Wrong. There is no question Hudson was guilty of possession of
various illegal substances. But there is also no question the cops messed up.

Since the 1300s in England, the police have been expected to observe
the "knock and announce" rule. The Detroit cops didn't knock. Their
search, under U.S. law as understood until last week, was illegal.

And under our law, at least until last week, evidence gathered in an
illegal search must be "excluded."

The so-called "exclusionary rule" derives from a little thing called
Amendment IV to the Constitution of the United States.

Here is how that amendment reads, in total:

"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, supported by Oath or affirmation, and particularly describing
the place to be searched and the persons or things to be seized."

One watches TV cop shows and hears about "probable cause" and
"unreasonable search and seizure." But one seldom hears about the
Fourth Amendment.

Well, thanks to the Fourth Amendment, which protects the right of all
of us to be secure in our persons and our homes, police and
prosecutors must obtain a warrant to search a home. They must show a
judge probable cause to obtain that warrant - why there is good
reason to believe that illegal drugs or firearms might be in a
person's house, for example. And the police must "knock and announce"
before they enter the home they are to search. If they do not knock
and announce, the search is unreasonable. And the evidence gathered
is excluded.

Last week, the U.S. Supreme Court ruled that such evidence could be
used. Knock and announce did not apply to Booker T. Hudson. The
decision was 5-4.

Justice Antonin Scalia said the centuries-old rule, and decades of
settled U.S. law reiterating it, was old-fashioned and no longer
necessary. (This is "conservative" jurisprudence?) Not to worry,
Scalia said: The police are better than they used to be. He said that
when cops do break the rule, the citizen could simply sue in civil court.

And Scalia derided "knock and announce," reducing it, so far as the
exclusionary rule is concerned, to "the right not to be intruded upon
in one's nightclothes."

But of course the Fourth Amendment is not about the right not to be
intruded on in one's nightclothes. It is about the right not to be
intruded upon without due process of law. And, for centuries, due
process was to knock and announce.

Justice Scalia dismissed ages of legal tradition with the wave of a hand.

If all searches are reasonable, by definition, the Fourth Amendment
is gone; obliterated. And the government grows stronger against the
individual in an era of an ever-enlarging Big Brother.

If, in the time of the anti-terrorist state, no search is
unreasonable, the state has absolute power.

The Fourth Amendment is not about making life hard for police
officers and easy for criminals. It is not about a right to
"privacy," for there is no express right to privacy in the
Constitution. It is about the people's right to "be secure" in their
persons and homes - the right of the individual to be secure against
the state, no matter how large the state and how small the
individual. The state may arrest or incarcerate the individual, but
it must follow a set and orderly and expectable process. It must make
its case. And its power can never be absolute.

The Fourth Amendment is about the right of the single human being to
be treated with dignity and respect under our law, no matter what he
may have done or what a prosecutor thinks he may have done.

If Justice Sandra Day O'Connor had stayed on the court, this case
would have come out the other way. It had to be reconsidered in
conference so her replacement, Justice Samuel Alito, could vote.

O'Connor was a conservative from Arizona. She understood that state
power comes at the expense of individual rights. In this case, Alito
and the new chief justice, John Roberts, voted for state power.

When Roberts and Alito were nominated and confirmed, the nation was
assured by the president and his backers that these were no radicals.
They might be conservative judges, but they believed in the Constitution.

Well, thanks to their votes, one key component of the Constitution
has been forever diminished.

Throwing out centuries of law sounds pretty radical. It sounds far
more radical than Earl Warren and Hugo Black asserting that the
Constitution held the key for racial integration of our nation.

Scalia is a dangerous radical, and anyone who agrees with diluting
the Fourth Amendment, because of ideology, stupidity, or obsequiousness, is too.