Saturday, September 24, 2005

Origins of the Fourth Amendment

This article was originally published in a number of places in May of 2001. It is still relevant so I'm republishing it here.


I'd like to talk today a little about the origins and meaning of the Fourth Amendment. First off what is the Fourth Amendment?

Amendment IV

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.
The meaning seems clear but I think it will become clearer if we look a little deeper into American history. The first point is that John Hancock before he became a signer of the Declaration of Independence was a smuggler. He had a famous run in with Crown officers in 1768 when his sloop the Liberty refused to pay the tax on some Madeira wine.

Now we know that there was strong sentiment in some corners of 18th century America in favor of smugglers. And we know that the people were continually harassed with open warrants and general searches. Revenue officers could target people on the merest suspicion or target their enemies with no cause whatever. Often there would be dragnets where the usual suspects would be rounded up for interrogations and searches. All in the name of collecting taxes and controlling contraband.

Now let us look at modern day America and the rights the Supreme court has declared we have left as opposed to those the founders gave us.

Where are we? The Drug War exception to the Fourth Amendment couldn't be larger. And let us be clear about this. The drugs for the most part are smuggled goods. So lets start with the biggest hole the drug profile or indicators as the police like to say these days. What do the police need to start a drug case against you? Do they have to see you with the drugs? Do they need to see you exchange money for drugs? No. You just need to 'look' like someone who in the opinion of the officer might do those things. You need only fit a profile or match a few indicators.

Lets look at a few of these specific indicators when it comes to the vehicle you are driving and get an idea of how specific they are:

Exterior Indicators to look for:

1. Large or late model cars with large trunks - GM most popular. a. Intermediate size also used. b. Occasionally a smaller car will be involved. 2. Older car in top running condition. 3. Vans and pickup trucks with camper tops also commonly used.

So now that the drug courier vehicle type is so clearly defined ( just about any car on the road ). Lets see what kind of driver they are looking for.

12. Driving habits often result in the courier being stopped for a routine violation a. Speeding up and slowing down b. Scrupulous obedience to traffic laws - overly cautious c. Erratic driving due to drug or alcohol use d. Many drive straight through and take drugs to stay awake e. Take a long time to pull over

So following the law or not following the law are grounds for a drug search. That sure gives you a lot of choices.

If you want to know more about how to avoid attracting unnecessary suspicion may I suggest you visit Drug Courier Profile Indicators

And the site that alerted me to the above site.

So from the above examples we see what is happening is that the limits on government are being eliminated to solve a smuggling problem. The very problem the writers of the Fourth Amendment experienced in their own lives and therefore anticipated.

If you should meet any of the so-called Supreme Court strict constructionists who have weakened the Fourth Amendment in their zeal to collect contraband tell them they are in error.

Tell them to read about John Hancock and the sloop Liberty.

Update: 25 October 2009 1207z

Here is a list of books that touch on the Drug War and the Fourth Amendment:

The Drug War and The Fourth Amendment

Cross Posted at Classical Values

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