Can Kamala Harris Be Trusted to Protect the Rights of Americans?

Vice President Kamala Harris is famous for her flip-flopping to win votes. She is currently courting the votes of gun owners by claiming that she owns a gun and any intruder in her home would be shot. According to Amy Swearer at The Daily Signal, this is what Harris was saying while district attorney of San Francisco in 2007: 

We’re going to require responsible behaviors among everybody in the community, and just because you legally possess a gun in the sanctity of your locked home doesn’t mean that we’re not going to walk into that home and check to see if you’re being responsible and safe in the way you conduct your affairs.

Even though Harris voiced support for Columbia v. Heller defending a ban on handgun possession in Washington D.C., Swearer found it “shocking” that Harris “so brazenly and vindictively threatened to violate gun owners’ other constitutional rights.” Since Harris is not an “amateur on criminal law who can claim ignorance,” she should know that “the Fourth Amendment protects people from unreasonable searches and seizures.” Swearer continued, “As a general rule, the government can’t search a person (or his or her property) without a warrant or absent probable cause that a crime has been committed.”

According to Swearer, Harris should also know that “there’s no ‘Second Amendment loophole’ to the Fourth Amendment. There’s no asterisk with fine print excluding gun owners from the rest of the Bill of Rights.” Swearer explained, “The government can’t force us to pick and choose between our rights, nor can it condition the exercise of one right on the waiver of another.”

Americans have the right to keep and bear arms, and we have the right to be free from unreasonable searches and seizures. We also have the right to be free from unreasonable searches and seizures while keeping and bearing arms.

Harris’ comments should rightly terrify Americans. You don’t have to be a gun owner or even like guns to see how dangerous this theory of governance is to a free society, and how dramatically it undermines constitutional norms.

If Harris is willing to unilaterally waive gun owners’ Fourth Amendment rights, it’s not unreasonable to ask what other rights she’d be willing to unilaterally waive, and for whom.

Can the government require all who peaceably assemble to forfeit any right against excessive bail?

Can it quarter soldiers in the homes of people who petition for redress of their grievances?

May it prohibit the free exercise of religion, but just for those who insist on their right to trial by an impartial jury?

Any American who has studied the Bill Rights knows that the correct answer is NO. Our Constitution does not work that way for anyone.

This is why Harris should never come close to becoming President of the United States. VOTE TRUMP!

Unreasonable Search and Seizure

            The topic of discussion for this Constitution Monday concerns the rights protected by the Fourth Amendment to the United States Constitution. The wording of the Fourth Amendment is as follows:

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.

            Elizabeth Slattery and John-Michael Seibler at The Daily Signal reported last week that the U.S. Supreme Court made an important decision on a Fourth Amendment case. The Court ruled that a police officer must obtain a warrant before entering a private driveway to search a parked vehicle. When I first heard of the case, I thought it was a flimsy reason for going to court and was very much on the side of the officer. However, the more I read about it, the more I understand that this was an important ruling. It protects citizens from having police officers walking around on their property looking for evidence of a crime.

            The article claims that an important feature of the Fourth Amendment is that it protects citizens from “unreasonable searches and seizures.” It usually requires that an officer “obtain a warrant before searching or seizing someone’s property.”

The Fourth Amendment protects against unreasonable searches and seizures, and generally requires police to obtain a warrant before searching or seizing someone’s property. The Supreme Court has recognized several exceptions to the warrant requirement, however, including for automobiles – since they can be driven off at a moment’s notice, and are subject to manifold regulations, courts will allow police to search vehicles based on probable cause that a crime has occurred without first obtaining a warrant.

The court has also determined that police may not search the curtilage of a home (that is, the area immediately surrounding a home) without a warrant.

Finally, the court has established that when a Fourth Amendment violation is found, typically a judge-made rule called “the exclusionary rule” applies, which commands the trial court to exclude evidence that was obtained illegally.

            The Collins v. Virginia case came about because a police officer walked up a driveway to look at a motorcycle that he thought was involved in “two separate traffic violations and high-speed police evasions, and was likely stolen. The officer confirmed that it was the motorcycle in question and that it was stolen, and later arrested Ryan Collins, who had left the motorcycle there at his girlfriend’s home” covered by a tarp.     

    

            The Virginia courts ruled against Collins, but the U.S. Supreme Court ruled in his favor. Eight members of the Supreme Court ruled that “when the automobile exception and protection of the curtilage collide, the latter wins….”

            Slattery and Seibler write about some interesting highlights to this case. You can find them in the article.  It sounds to me that the officer who inspected the bike considered it to be an automobile and, therefore, thought there was an exception. However, the court ruling means that citizens are protected from officers roaming around their property without first having a warrant. Freedom from unreasonable search is always a good thing.

Probable Cause

                The topic of discussion for this Constitution Monday comes from the Fourth Amendment to the U.S. Constitution:  “The right of the people … no Warrants shall issue, but upon probable cause, supported by Oat or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  This provision guarantees to the American people that they are to be free from arrest except on properly issued warrants.

                W. Cleon Skousen explained, “However, no warrant is required if the person is observed committing the crime and he is apprehended by those who witnessed the offense.

                “Among the most offensive devices used by the Crown against the colonies were the writs of assistance, general warrants allowing officials to engage in `fishing expeditions,’ ostensibly to discover evidence of smuggling contraband goods.  James Otis of Massachusetts became celebrated in 1761 by contesting this form of tyranny in the courts.”  (See The Making of America – The Substance and Meaning of the Constitution, p. 703.)

                William J. Stuntz of The Heritage Foundation explained, “The first half of the Fourth Amendment’s text bans `unreasonable searches and seizures.’  The second half, known as the Warrant Clause, states a set of basic requirements for search warrants – that they must be supported by an affidavit that establishes probable cause, and that they must describe both the location and objects of the search.

                “One its face, the Warrant Clause would appear to be one of the most clearly written clauses in our Constitution.  It requires that warrants be supported by probable cause, that the police officer seeking the warrant swear to the truth of the facts used to support his application, and that, once issued, the warrant describe where the search is to take place and what the officer is allowed to look for.  All this is plain from the text.  Perhaps because they are so plain, the rules just described have not been the subject of much litigation.”

                Mr. Stuntz further explained that the text of this clause did not answer clearly two very important questions:  (1) “What does `probable cause’ mean?  The Fourth Amendment’s text does not say.”  (2) “Are officers ever required to obtain warrants in order to carry out a search or make an arrest?  Again the text leaves the question open, though it implies that the answer is no:  the phrasing of the Warrant Clause limits warrants but does not mandate their use.”

                “Probable cause” was determined by two court cases.  “In Brinegar v. United States (1949), the Supreme Court defined `probable cause’ as information that would lead `a man of reasonable caution’ to believe `that an offense has been or is being committed.’  In Illinois v. Gates (1983), the Court put it more succinctly, describing probable cause as `a fair probability.’  … In most cases `probable cause’ means what the ordinary definition of `probable’ would suggest:  more likely than not….”

                After explaining why the second question is much more complex, Mr. Stuntz explained:  “Thus the original understanding of the Warrant Clause was in one sense clear, and in one sense not….

                “Today’s Warrant Clause doctrine differs from the historical understanding in some important respects….” 

                A quick summary of my understanding of what Mr. Stuntz wrote would be:  Warrants should be issued only by judicial officers or magistrates.  Warrants can be issued without “probable cause” to authorize such things as building and fire code inspections.  Because police investigate crimes and have more power to enforce the law, they normally need to have warrants for “probable cause” – except for (1) Exigent circumstances” – meaning practically impossible; (2) Arrests outside the home;  (3) Searches incident to arrest – if being arrested, officers can search bags, cars, etc.;  (4) Inventory searches – officer can take any belonging the arrestee has in his possession to the police station, and make a record of it; (5) Automobiles can be searched without warrants for “probable cause”; (6) Street stops and frisks – given reasonable suspicion, officer can briefly stop a suspect and frisk for weapons.

                “In addition to these exceptions, there are several categories of searches that involve government officials other than police officers (e.g., searches of lockers by school principals, and government employers searching employees’ file cabinets), or government interests separate from the interest in criminal law enforcement (e.g., searches of vehicles at the nation’s borders, searches of baggage at airports).  Such searches general do not require warrants.”  (See The Heritage Guide to the Constitution, pp. 326-329.)

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.)

Right to be Secure

                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 in their persons, houses, papers, and effects….”  This provision of the Constitution guarantees privacy to the American people in all areas of their lives.  This provision is under serious threat, particularly by Obama Administration and all its scandals.

                W. Cleon Skousen stated, “it will be immediately apparent that in our own day, many of these rights of privacy have been seriously impaired.  This has resulted almost entirely from the unauthorized invasion of the home, the business, and the private papers of the individual citizens by governmental agencies either enforcing federal regulations or collecting federal taxes under the Sixteenth Amendment.

                “Until the famous Barlow case, inspectors from the Occupational Safety and Health Administration (OSHA) were intruding into private plants and businesses without warrants to see if they could find violations of safety or health regulations.

                “The extent to which the Internal Revenue Service has invaded the privacy of citizens to make certain each is paying his or her fair share is a matter of great concern through the entire country.  However, the major fault is with the law rather than the IRS.  The collection of direct taxes, such as income taxes, is impossible without virtually wiping out the guarantees set forth in the Fourth Amendment.”  (See The Making of America –The Substance and Meaning of the Constitution, pp. 701-702.)

                Gerald V. Bradley of The Heritage Foundation explained, “The Fourth Amendment is the most prolific source of constitutional litigation in American history, particularly with application to the states after its incorporation through the Due Process Clause of the Fourteenth Amendment.  Mapp v. Ohio (1961).  Its reach is indescribably broad:  every one of the millions of arrests made annually is a Fourth Amendment event.  So too is every search of every person or private area by a public official, whether a police officer, schoolteacher, probation officer, airport security agent, or corner crossing guard.  The Fourth Amendment is the constitutional sentry whenever someone’s privacy is diminished by a governmental search or seizure.  It protects a person’s `legitimate expectation of privacy.”  Katz v. United States (1967)….” (See The Heritage Guide to the Constitution, pp. 323-324.)

Freedom from Search

                The liberty principle for this Freedom Friday is the simple fact that Americans are guaranteed freedom from unreasonable search and seizures; this freedom is guaranteed by the Fourth Amendment to the United States Constitution, which states:  “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.”

                Gerard V. Bradley of The Heritage Foundation wrote, “The Fourth Amendment is the most prolific source of constitutional litigation in American history….  Its reach is indescribably broad:  every one of the millions of arrests made annually is a Fourth Amendment event.  So too is every search of every person or private area by a public official, whether a police officer, schoolteacher, probation officer, airport security agent, or corner cross guard.  The Fourth Amendment is the constitutional sentry whenever someone’s privacy is diminished by a governmental search or seizure.  It protects a person’s `legitimate expectation of privacy.’  Katz v. United States (1967).  `Legitimate,’ the Court declares, means an actual expectation of privacy that society is prepared to recognize as `reasonable.’  In defining that phrase, the reasonableness clause of the Fourth Amendment has spawned a vast amount of litigation” (The Heritage Guide to the Constitution, p. 323).

                On Monday, June 3, 2013, the U.S. Supreme Court ruled by a 5-4 majority that criminal suspects can be subjected to a police DNA test after their arrest but before a trial and conviction.  According to Bill Mears, CNN Supreme Court Producer, this is “a privacy-versus-public safety dispute that could have wide-reaching implications in the rapidly evolving technology surrounding criminal procedure.  At issue in the ruling Monday was whether taking genetic samples from someone held without a warrant in criminal custody for `a serious offense’ is an unconstitutional `search.’ 

“A 5-4 majority of the court concluded it is legitimate, and upheld a state law.  `When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,’ the majority wrote.”

Mears explained that “law enforcement lauds genetic testing’s potential as the `gold standard’ of reliable evidence gathering, especially to solve `cold cases’ involving violent offenders.  But privacy rights groups counter the state’s `trust us’ promise not to abuse the technology does not ease their concerns that someone’s biological makeup could soon be applied for a variety of non-criminal purposes.

“Twenty-six states and the federal government allow genetic swabs to be taken after a felony arrest and without a warrant.  Each has different procedures, but in all cases, only a profile is created.  About 13 individual markers out of some 3 billion are isolated from a suspect’s DNA.  That selective information does not reveal the full genetic makeup of a person and, officials stress, nothing is shared with any other public or private party, including any medical diagnostics.”

Dan Calabrese explained that the Supreme Court decision came in a case from 2009 involving a man named Alonzo King.  He “menaced a crowd of people with a shotgun” and was arrested on first-degree charges.  While being booked at the police station, the “police took a DNA sample” allowed “under a Maryland law that allows collection from suspects taken into custody with probable cause.”

When the DNA sample was run through a DNA data base, it “revealed that King had raped a woman in her home in 2003 on the basis of forensic evidence collected from the victim.  King sued, claiming that without a warrant the test violated the Fourth Amendment’s protection against unreasonable searches, and the Maryland Court of Appeals agreed.”

Calabrese summarized the explanation of Justice Anthony Kennedy who wrote for the majority:  “genetic information can be reasonably obtained for the purposes of identifying the person.  People in custody have no reasonable expectation of privacy, and accurately assessing the risks a suspect poses to the public is critical.  That is especially true for criminal history, since violent criminals tend to be recidivists.  Justice Kennedy equates DNA with the routine practice of fingerprinting suspects, which the courts have long upheld.” 

As a self-described “law-and-order type conservative,” Calabrese supports the decision of the Supremes.  He believes “there is no difference [between fingerprinting a person and collecting a DNA sample].  It’s just that one has been an established aspect of police work longer than the other has, because in the case of the latter, the science is newer.  Just as it’s permissible to collect fingerprints as an identifying mark of an individual and to log that information into law enforcement databases, there’s no reason it shouldn’t be permissible to collect DNA in the same way and to the same end.”

Robert Laurie, a Libertarian-leaning colleague of Calabrese, believes that the Supreme Court decision is “atrocious” and listed three reasons for his belief.

“1. It clearly violates the Fourth Amendment…. DNA is both a part of my `person’ and one of my `effects.’  It grew as a part of me and I own it….”  He believes that “simply being accused of a possible transgression” is different than being “convicted of a crime and incarcerated,” the latter causing greater loss of freedom.  He also wonders if the government will “be forced to destroy that evidence, or will it be sitting in a database somewhere, ready to be used against me in the future?”

“2. My fingerprints don’t contain my entire genetic code.  The building blocks of everything I am as a person are contained in every drop of my blood, and in every `swabbed’ cheek cell.  From it, the feds, or government can determine not just my identity, but my health status, my genetic relations, and my entire family ancestry.”  Since scientists are “hard at work to find the `gay gene,’ as well as the `conservative gene’ and the `liberal gene,” he believes that the “potential for abuse is virtually limitless.”

“3. We know we can’t trust the government to handle this information properly....  If we can’t halt our government’s current overreach, why in the world would anyone – right or left – be willing to grant it the tools to expand its intrusion?  This Supreme Court decision does nothing but grease an already slippery slope.”

                Freedom from “unreasonable” search and seizures is much more complicated in our day and age than it was during our Founding.  I will admit that my first thought upon hearing the decision was about the same as that of Calabrese.  I could not see much difference between fingerprinting and taking DNA; besides, I am a law-abiding citizen and do not have any previous “crimes” to be discovered.  Why do I need to worry?

Since I read Laurie’s comments, I have been doing further thinking on the subject.  IF we could trust our government, I would not be concerned about the DNA sampling, BUT our government has proven to be untrustworthy and could make up crimes for even the best citizens!  A rogue government could certainly use our DNA against us.  We have to protect ourselves from our own government, and the Supreme Court has made the task more difficult!