Searches and Seizures

                The topic of discussion for this Constitution Monday comes from the Fourth Amendment to the U.S. Constitution:  “The right of the people to be secure … against unreasonable searches and seizures, shall not be violated….”  This provision guarantees that Americans will be protected against unreasonable searches and seizures.”

                W. Cleon Skousen explained that “legalized searches and seizures connected with the regulatory and taxing laws has seriously strained the protection intended by this provision.  There has also been a serious invasion of privacy through the use of telephone wiretaps, electronic listening devices installed in offices and homes, and tampering with the mail.

                “It should be noted that this provision protects a person only in cases where the invasion of privacy is `unreasonable.’  Consider, for example, these situations:  (1) It is not considered unreasonable for the police to check an offender’s car or immediate premises at the time of his arrest and pick up any property belonging to the offender that is considered to be `evidence.’  (2) It is not considered unreasonable for the police to pursue a suspected criminal across private property in order to apprehend him.  (3) It is not considered unreasonable for a person to check out a vacationing neighbor’s premises under suspicious circumstances.

                “Obviously, however, it would be unreasonable to open the mail, tap the telephone wire, or put another citizen under electronic surveillance.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 702.)

                Skousen published his book in 1985.  I am sure he would have included data gathering on our telephones by the NSA and drones flying around our homes on his list of “unreasonable” searches and seizures.

                Gerald V. Bradley of The Heritage Foundation explained the “primary mechanism for enforcing the Searches and Seizures Clause is the exclusionary rule:  evidence seized illegally may not be used against the one whose privacy was invaded, at least where there is a criminal trial against him, and there only in the prosecutor’s case-in-chief.  Apart perhaps from the required Miranda warning … the exclusionary rule is the most criticized Warren Court criminal justice innovation….

                “Did the Framers intend the exclusionary rule?  Even the rule’s most ardent supporters admit that they did not.  Virtually no one doubts that, until the twentieth century, criminals did not go free, as Judge (later Justice) Benjamin N. Cardozo put it, `because the constable blundered.’  … The criminal would have been convicted, and the offending constable would have been liable as a tort-feasor for trespassing upon a person’s privacy without proper authority or cause.

                “The central argument in favor of exclusion is that it is necessary to give the Fourth Amendment real, as opposed to theoretical, meaning.  If police officers were allowed to offend the Constitution with impunity (which, it is alleged, they would if a defendant could be convicted on tainted evidence), the Fourth Amendment would be a `mere form of words.’  This argument presupposes that illegal searches and seizures are deterred by the prospect of exclusion.  If the evidence cannot be used at trial, what is the point of seizing it?”  (See The Heritage Guide to the Constitution, p. 325.)