Tuesday, April 22, 2008



DWT's constitutional expert Jon Dodson has been working on a 25 part series about the Fourth Amendment. You might want to check out Part I and Part II. Jon:
At long last, another piece on the Fourth Amendment. Eons ago, I wrote the first two installments, the first one on the difference between searches and Fourth Amendment "searches," and the second on the difference between seizures and Fourth Amendment "seizures." This matters because the Fourth Amendment only covers "searches" and "seizures." The next great bulwark of constitutional protection is the rule that any police action that through some oversight by the Supreme Court, actually falls within the operative definitions, must be supported by a "warrant" and "probable cause," occasionally. Today, "probable cause."
It's the second-lowest standard of judicial review in the Western legal system, and it only applies sometimes. Aside from prosecutorial discretion, it's the only thing between a person and typically, a night in jail, several thousand dollars in legal fees, court fees, probation fees, fees of the various other organizations that leech off of the criminally accused, and a criminal charge, which would forever stain your record, whether or not you're convicted. More pertinent to the Fourth Amendment, an officer must have probable cause to believe he will find something in order to conduct a "search," and must have probable cause to believe an item (or person) is relevant to a crime in order to "seize" it, sometimes.
When a police officer pulls someone over, she may have a hunch that the car contains contraband, or evidence of a crime. Such a hunch could come from many sources-- the stereotypes and prejudices of the officer, the race, religion, gender, or manner of dress of the person detained, political and other bumper stickers, or even concrete "evidence." The police officer need only point to some objective fact that bolsters his "hunch." Such a fact need not be verifiable later in court (such as the whether it smelled of marijuana). So long as the fact seems plausible in light of the officer's allegations, then an officer will usually have probable cause to search or seize a person or thing.
There are many other standards of proof a judge might use to measure the reliability and credibility of the State's allegations. In order to convict the person of a crime, the prosecutor must prove the charges "beyond all reasonable doubt." This is the highest standard. The next highest standard is "clear and convincing evidence," which is used in child custody hearings. Next is "preponderance of the evidence," which basically means "more likely than not." Statistically speaking, evidence surpasses the "preponderance of the evidence" standard, when the evidence establishes that something was 51% likely to have happened.  By implication, some allegations that are less than 51% likely to have happened meet the next lowest standard: probable cause. When the allegations are merely "as likely as not" to have happened, there is probable cause. Even when the allegations are improbable, there is usually probable cause.

Despite the ease with which any officer or false informant could manufacture probable cause, the Supreme Court found that the remains of the standard recited in the Fourth Amendment, were still too inconvenient to law enforcement. Over the last forty years, the court has devised ad hoc exceptions to the constitutional mandate. Hence, we have many Fourth-Amendment-free zones in this country. Some of them are more understandable than others. For example no probable cause is needed to search one's bags in airports, airplanes, many government buildings, large gatherings, and all kinds of commercial establishments, big and small. These exceptions are extremely inconvenient, but perhaps understandable. There's a plethora of different "automobile" exceptions to probable cause. Most people spend substantial time in their cars. We transport everything in our cars, including groceries, personal papers and documents, medications, and pretty much anything that fits. We go many different places and jurisdictions in our cars. But anything in our cars can very easily be searched. 
Then there's the so-called "Terry stop." This is a vague exception, whereby an officer can perform a pat-down or other limited search based on the lower "reasonable suspicion" standard. Translation: an officer can detain a person and search their pockets and bags whenever he can pull a story out of his ass that is minimally, arguably plausible. 
So, the venerated standard, "probable cause," is a virtual free-for-all. A dishonest officer must only articulate something not patently outrageous to meet the standard. In many situations, such as in cars or airports, the officer doesn't even need this. Moreover, as discussed previously, the standard doesn't even apply to the vast array of invasive police activity not considered a constitutional "search," or "seizure." We could take refuge in the Constitution's mandate of judicial oversight of searches and seizures, via the warrant procedure. But, as you might imagine, the warrant procedure doesn't amount to much, particularly when judges apply such deferential standards. So, despite the Fourth Amendment's historical, quintessentially American underpinnings, the grand, revolutionary ideas encapsulated, and its centuries of use, all we're really left with is perhaps all we ever had: the discretion of the powerful. 


Supremes give the man more power for searches. "The Supreme Court offered unanimous support for police Wednesday by allowing drug evidence gathered after an arrest that violated state law to be used at trial, an important search-and-seizure case turning on the constitutional limits of 'probable cause.'"
When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety," Justice Antonin Scalia wrote.

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