Excepting their way around the Fourth Amendment…

Most of us do not decide to gain thirty pounds, to become intolerably grouchy, or to become immoral. Rome was not built in a day. Nor did Rome crumble in a day. Rather, as C.S. Lewis said, “The road to hell is a gentle slope.” So too is the road to tyranny.

The text of the Fourth Amendment…

The Fourth Amendment provides that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed, and no Warrants shall issue, but upon probable cause, supported by oath or affirmation, particularly describing the place to be searched and the person or thing to be seized.” The Founders could have worded the Fourth Amendment differently. It could have read, “The police can search and seize persons and things whenever it is reasonable.” In other words, it could have omitted the Warrant Clause as well as place the emphasis on law enforcement goals, rather than individual rights.

However, the Fourth Amendment was enacted by former criminals, namely revolutionaries who committed treason against Great Britain when they declared their independence, tax evaders who would not pay tea tax, and smugglers who imported goods without paying duty. Naturally, they had a catch-me-if-you-can attitude. The Fourth Amendment italicized if you can by prohibiting warrantless searches and general search warrants (which the British had used to enter ships looking for evidence of general wrongdoing. Our Constitution requires that the police have probable cause that you are committing a crime, a specific crime. It is not enough for law enforcement to say, “Boys, let’s find something out about Smith”). Thus, narrowly drawn search warrants are favored by the Fourth Amendment.

Because of the conjunctive, “and no Warrants shall issue” the Court originally reasoned that a search without a warrant was presumptively unreasonable. After all, if a search without a warrant was generally reasonable in the eyes of the drafters of the Fourth Amendment, then the Warrant Clause would have been unnecessary verbiage.

Each time a federal court provides that a warrantless search is reasonable, it makes the Warrant Clause so much dicta. Why obtain a warrant (which requires judicial approval and probable cause and limits the scope of a search) when one of a dozen exceptions apply? An exception gives the officer free reign.

Nonetheless, we can all imagine necessary and proper exceptions to the general warrant requirement. For example, if a police officer saw a man running from a bank with bags of money, it would be reasonable – indeed, theoretically required – for him to seize the culprit without a warrant. However, this exception was too narrow for law enforcement. Rarely do crimes solve themselves. Rarely do police have direct evidence of wrongdoing. It takes hard work to solve crimes. Good sleuthing takes time. The Fourth Amendment got in they way: it made the work harder. Something had to be done. The courts were willing to help.

Beginning with Terry v. Ohio, our Fourth Amendment protections were first narrowed, then excepted. In Terry the Supreme Court held that police may seize someone without probable cause: all that was necessary was reasonable suspicion. However, this seizure must be brief. Somehow, the brevity of a seizure exempted it from the Fourth Amendment’s text. The Court then went full force, recognizing at least eight more exceptions to the Warrant Clause. This brings us to United States v. Gould.

United States v. Gould

The police had a tip that Gould was up to no good. By all accounts he was a scoundrel. None of us would like him. If we saw him getting beaten up in a bar, we would cheer.

The police knew that Gould rented a small trailer home (14 by 16 feet). They went to his apartment to talk to find out what he was up to. They did not have a search or arrest warrant. Based on the information the police had, they probably could have obtained a search warrant.

They knocked on the door to the trailer. Gould’s friend answered. The police officer did not know this friend. The police asked if they could come in. The friend said yes. The police asked where Gould was. The friend said, he is in his the bedroom sleeping. The friend said you can go search Gould’s bedroom for him.

Gould’s friend did not own or rent the apartment. Gould’s friend certainly did not own or rent the space where Gould was sleeping. Nevertheless, the police were allowed to search Gould’s private articles because it was “reasonable” for them to think that the friend could consent to this search. The apparent authority exception applied. Why was it reasonable?

Did the police ask if the friend could consent to the search? Did they ask the friend if he rented the apartment or otherwise was in control of it? Did they ask him whether Gould gave him access to Gould’s bedroom?

No. The police need not ask the person consenting to the search if he has the authority to consent. The apparent authority exception still applies. It is reasonable to draw conclusions without facts. It may frustrate law enforcement to find out that the person consenting to the search has no right to do so. The Fourth Amendment must give way to the practicalities of life.

Bedroom eyes…

The police then walked down the hall towards Gould’s bedroom. The door to his bedroom is open. The police can see in plain view that Gould is not sleeping in his bed. They walk in anyhow.

The police decide that their safety requires them to search under his bed and in his closets to see if Gould is hiding. The three armed officers said they feared for their safety. The police found guns in Gould’s closet. Since Gould was a convicted felon, he committed a federal crime by possessing firearms.

Gould was rotten to the core. Nonetheless, the police were in his bedroom without a warrant and without his consent. The search is allowed under the protective sweep exception to the Fourth Amendment. It took two exceptions to the Fourth Amendment, but it’s okay since the police got the goods.


Soundly reasoned…

The problem with Gould is that the reasoning is not overly flawed. It makes a few missteps but is not wholly fallacious. The problem with Gould is that the reasoning is reasonable because we have diverted from the text of the Fourth Amendment. One exception here, one exception there, and before long, the Fourth Amendment does not apply.

This scary language…

“If the fact that Gould was not in his bed or otherwise visible in the bedroom can be taken as signifying a refusal on his part to talk to the officers and in that sense a termination of their consent to be in the mobile home for that purpose, nevertheless that does not mean that the officers could not conduct the sweep.” (footnote omitted) Slip opinion at 30-31. In other words, even if you tell the police to get out of your house, they can search it on their way out.

Reality…

Imagine an acquaintance (re: not a close friend) knocks on your door looking for you. He looks in the bedroom and sees you’re not there. This person then walks into your bedroom and looks through your stuff. Is that reasonable? Would you feel that your right to privacy was violated? Would it matter if your friend said it was okay for the acquaintance to search through your things?

Imagine a complete stranger comes looking for you, and not finding you, looks through your things. Would that be reasonable? May I come over to your house to look through your things? If your friend allows me to, does it matter?

The police are strangers. The power of the government is not to be trusted. The Founders recognized this, which is why we have federalism, separation of powers, and a Bill of Rights. The Reconstruction Era United States recognized that states, like the federal government, are not to be trusted with our liberty. And so they enacted the Fourteenth Amendment, which was intended to incorporate the Bill of Rights to the states.

No apologist…

I am not an idealist or radical civil libertarian who things that even scoundrels have rights. I am not that enlightened (though I wish I were – after all, in God’s eyes we are all equals). But I am selfish about my rights. I do not want the police – or anyone – going into my apartment without a warrant and searching through my things, even though I am quite boring and don’t even own pornographic materials or subversive books like Paine’s Common Sense.

However, I have a near-religious devotion to the Constitution. Thousands of men and women died so that we may be free from the intrusive federal government. Half a million more died so that states would have their power over us limited. The Founders recognized that we the people may decide that the Constitution is no longer a good fit. Consequently, it allows itself to be amended: we the people (by 2/3 votes of each house of Congress and popular vote of 38 States) can correct anything we don’t like. It is for you and me – not unelected federal judges – to decide.

As Benjamin Franklin walked out of the Constitutional Convention, a woman asked, “What have you wrought?” He said, “A Republic, if you can keep it.” It seems that we can’t.

And slowly we decline…