HIGH COURT CARRIES OUT WAR ON PRIVACY

The systematic shredding of the Fourth Amendment's protection of personal
privacy in the name of the war on drugs proceeds apace. The latest example
is a Supreme Court decision, Maryland v. Pringle, that approves the police
arresting every passenger in a car where drugs are found.

The case stems from a 1999 traffic stop in Maryland, during which police
found a roll of money in the glove box and some cocaine in the armrest in
the back seat. Neither the driver nor the two passengers admitted to owning
the drugs, so the police simply arrested all three of them.

On Monday, the Supreme Court said that was fine.

The ruling puts people on notice that they had better be careful whom they
ride with. In normal circumstances it would be considered somewhat rude to
ask to search through the glove box when somebody offers you a ride, but
that might not be a bad idea in the wake of this decision. The court's
rationale also could apply to searches of homes and to contraband other
than drugs.

As Tim Lynch, director of criminal justice studies at the Cato Institute,
said, it is not so much that the decision to arrest in this particular case
was completely out of line. It's that the drug war causes the police and
the courts to keep pushing at personal privacy. A few weeks ago, the high
court ruled that if somebody didn't answer a knock on the door in 10 or 15
seconds it was perfectly reasonably to batter down the door.

The fundamental problem is that when a victimless crime is created - in the
narrow legal sense that neither party in a drug transaction is likely to
become a complaining victim and demand that the police get the perpetrator,
as would be the case in, say, a burglary - a problem is created for the police.

The only way to try to enforce such a law is to invade people's private
spaces - and invade them as quickly, efficiently and sometimes brutally as
possible.

When the courts look at the situation from the perspective of the drug
warriors rather than from the perspective of a citizen in a free society
who has a reasonable expectation of privacy, they keep authorizing ever
more intrusive methods. It doesn't stop the drug trade, of course, but the
process gradually erodes the expectation of privacy that ordinary citizens
should have.

Should passengers in a car be arrested if one of the other people in the
car is possessing drugs?

Yes, species can cross political borders

What's the difference between a ferruginous pygmy owl living in Arizona and
a ferruginous pygmy owl living just across the border in Sonora, Mexico?
And no, south-of-the-border birds do not wear tiny sombreros.

If you answered, "nothing," you've just shown more common sense than the
geniuses in Washington who wrote and passed the Endangered Species Act 30
years ago this month, or their successors who enforce the law today.

In fact, there is no biological difference between the two birds, except in
the eyes of the ESA. It insists that the relatively few owls found in
Arizona be counted as endangered, granting them special protections that
have had considerable negative economic impacts on areas where they are
found, in spite of the fact that the birds are plentiful just south of the
border. (They also are found in the Rio Grande Valley.)

In practice, the law Balkanizes animal species according to nation-state
boundaries, meaning that an American population of animals is counted as a
separate, self-contained group, even though an abundance of identical
critters can be found living elsewhere. Animals, of course, don't respect
such borders; Canada geese, for instance, don't confine their activities to
Canada.

But the law doesn't recognize that simple fact, in one of many absurdities
that demands a correction.

The U.S. Fish and Wildlife Service this week asked a federal judge to
remove the bird from the endangered list, given that pygmy owls are in no
real danger of extinction and because of the dramatic impact the listing
has had in Arizona, where 1.2 million acres were set aside as critical
habitat. A panel of federal judges already ruled once that the bird's 1997
listing was "arbitrary and capricious." But radical environmental groups
are predictably pledging to fight the de-listing, lest they lose a powerful
tool for halting development in the Tucson area.

We offer this story as just one more reminder of why the ESA, which this
month "celebrates" its 30-year anniversary, is an out-of-control,
counter-to-common-sense law badly in need of an overhaul or outright repeal.