Fourth Amendment - Void Where Prohibited by Law

The claim that “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” is simply untrue.

Anyone who has flown on a plane recently (other than Air Force One) knows that the Fourth Amendment has been relegated to the dustbin of history. Although writs of assistance were once grounds for Americans to revolt, today they are standard operating procedure.

And if being irradiated by porn scanners and sexually assaulted by blue-gloved goons isn’t violating the security of the people in their persons, then I don’t know what is.

Anyone who has conducted a financial transaction recently also knows (or should know) that the Fourth Amendment no longer applies to one’s papers and effects. No warrant is required, and no probable cause is needed for the Federal government to spy on private bank records. Customs officials now comb airports with cash-sniffing dogs to prevent people from taking money out of the country without the government’s say-so. Indeed, the very fact that an American citizen carries cash is often grounds for the government to seize it. In many cases, no charges are ever filed against the individual, yet the money itself is convicted of a crime and never returned to its rightful owner.

Anyone who has ever driven through the southwestern portion of the United States knows that the Fourth Amendment no longer prevents unreasonable searches. Scanners line the road to x-ray vehicles as they pass increasingly militarized checkpoints designed to spy on travelers to make sure they’re not transporting unapproved people or plants. Again, no probable cause needed, and no warrant issued.

Some may argue that the preceding examples don’t really mean anything. If you don’t want government agents to see you naked or feel you up, then you just shouldn’t fly. And if you don’t want your financial records scrutinized or your cash seized, then don’t keep your money in the bank – or on hand, either. And if you don’t want your car electronically searched by border guards, then just don’t drive.

To these arguments, I will only say three things.

First, may your chains rest lightly upon you.

Second, please explore the concept of “unconstitutional conditions.”

Third, direct your attention to two recent court decisions. The first is the US Supreme Court’s ruling in Kentucky v. King, in which they decided all that’s needed for the police to break into your home is the desire to do so. The vote wasn’t even close. Eight justices – including all of the alleged “strict constructionists” – decided that a man’s home is no longer his castle, and that the right of the people to be secure in their houses is simply a relic of a bygone era. Only Justice Ginsburg (hardly a consistent defender of individual rights) dissented, writing,

“The Court today arms the police with a way routinely to dishonor the Fourth Amendment’s warrant requirement in drug cases. In lieu of presenting their evidence to a neutral magistrate, police officers may now knock, listen, then break the door down, never mind that they had ample time to obtain a warrant.”

Continuing in her dissent, she states,

“In no quarter does the Fourth Amendment apply with greater force than in our homes, our most private space which, for centuries, has been regarded as ‘entitled to special protection.’…Home intrusions, the Court has said, are indeed ‘the chief evil against which…the Fourth Amendment is directed.’…

How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and, on hearing sounds indicative of things moving, forcibly enter and search for evidence of unlawful activity?”

To ask the question is to answer it.

But the Kentucky v. King decision may be small potatoes when compared to the ruling handed down recently by the Supreme Court of the State of Indiana. The court, in a 3-2 decision, found that Indiana residents don’t even have the right to resist the unlawful entry of police into their homes.

In explaining the decision, Justice Steven David stated,

"We believe ... a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence. We also find that allowing resistance unnecessarily escalates the level of violence and therefore the risk of injuries to all parties involved without preventing the arrest."

Let that sink in for a minute. Even when it is recognized that the police are breaking the law – either because they have a warrant but got the wrong house, or because they don’t have a warrant at all – citizens must simply lie back and think of England. By that logic, what crimes committed by the police would a citizen be justified in resisting?

And how long before the US Supreme Court upholds this interpretation?