L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 75, June 5, 2000
Rediscovering the Fourth Amendment
by Vin Suprynowicz
Special to TLE
As little as 50 years ago, American movie audiences could be expected to hiss and boo as the Nazi Gestapo agent was shown insinuating himself through the passenger cars of some European train, ominously hissing, "Papers, please?"
Only in totalitarian police states (Americans then understood) were citizens subject to random searches -- or any requirement that they show their "papers" at the mere whim of a suspicious government official.
Then things began to change in America. Where once the Fourth Amendment ("The right of the people to be secure ... against unreasonable searches and seizures, shall not be violated") was presumed inviolate, now police complained such restrictions were making it impossible to fight the War on Drugs.
The courts responded to the "pragmatic realities" of the Drug War by granting police a progressively greater presumption of "compelling need" to violate the terms of the Fourth -- first in a few cases of "fleeing suspects"; then in "random traffic stops"; finally tumbling down the slippery slope so far that today, "It's OK that you killed these innocent homeowners in their beds, as long as it was your anonymous informant who got the address wrong. But you really should pay to fix the door."
Now, finally, the U.S. Supreme Court seems to be rediscovering that ancient "right of the people to be secure ..."
In 1997, Steven Dewayne Bond was a passenger on a Greyhound bus en route from California to Arkansas, when the bus was stopped at an "immigration checkpoint" in Sierra Blanca, Texas. A Border Patrol agent checked the passengers' immigration status, and then felt their luggage.
The agent squeezed a canvas bag in the bin over Bond's seat, and later told the court his perception of a ''brick-like object" led him to suspect it contained drugs. When the agent asked Bond if he could open the bag, the agent testified he was told, "Go ahead."
Inside, the agent found a brick-shaped object covered in tape, later revealed to contain methamphetamine.
Mr. Bond was convicted of drug possession and "conspiracy" (an all-purpose add-on charge, these days. Unless he manufactured the drugs from scratch, he obviously had to have "conspired" with somebody.) The appeals court said the agent needed no search warrant, since Mr. Bond gave up any reasonable expectation of privacy when he "exposed" the bag to the public by putting it in the overhead bin.
But on April 17, the U.S. Supreme Court overturned Bond's conviction, Chief Justice William H. Rehnquist writing for the court that "Physically invasive inspection is ... more intrusive than purely visual inspection." A citizen does not waive his privacy rights when he places his belongings in a piece of luggage, under the absurd theory that he is then inviting one and all to "feel the bag in an exploratory manner," the court ruled.
The 7-2 court majority is a strong one, with only Justices Antonin Scalia and Stephen Breyer dissenting, on the theory that enforcing the Fourth Amendment could "deter law enforcement officers searching for drugs" (Justice Breyer absurdly adding that travelers who want to safeguard the contents of their luggage "from public touch should plan to pack those contents in a suitcase with hard sides." Sure. And those of us travelling by air can demonstrate our reluctance to "waive our privacy rights" by simply buying luggage with lead panels designed to block the omnipresent X-Rays ... right?)
Indeed, the Fourth Amendment certainly does "deter law enforcement officers searching for drugs." It doubtless does so every day. But an explicit delegation of power to Congress to fight a War on Drugs is difficult to locate -- some even arguing that the "unenumerated rights" protected by the Ninth Amendment must include the once unrestricted right to consume alcohol and other drugs, as our ancestors were free to do from 1600 to 1915 -- lest why would a constitutional amendment have been required to outlaw alcohol in 1919?
I believe this is a correct and sensible reading of the Ninth. But even if the drug war were somehow legitimate, whenever a freedom specifically guaranteed by the Bill of Rights comes into conflict with the convenience of the police, the Bill of Rights must clearly prevail.
If the War on Drugs cannot co-exist with the Bill of Rights, then it is time to call a halt to the War on Drugs for that reason, alone.
In the meantime, the 7-2 majority of the high court managed to do the right thing in the case of Steven Dewayne Bond (Bond vs. U.S., 98-9349.)