The fourth ammendment and a free society
|My class at the academy was, I suppose, typical. There were classes on the neat stuff: defensive tactics, firearms, vehicle stop procedure, and so on. And then there was the boring stuff: lecture after lecture about search and seizure. Terry stops, the three-prong test, limits of curtilige, consent searches and exceptions, etc., etc. etc. To add insult to injury, the bulk of our time was spent in these boring lectures about the fourth amendment.
Boring to everyone, it seemed, but me. I had come to police work as an adult, as a second career. Like most adults—even law abiding ones—I had been under the impression that the cops were just boobs who gave me speeding tickets when they should have been out catching murderers. Ironically—and again like most other Americans—I also assumed that when the cops encountered a bad guy, they just whupped him and took him into custody. Unless they shot him first. That's what Starsky and Hutch always did! Coming to police work from a martial arts and firearms background, that seem darn appealing.
But those fourth amendment lectures changed all that. I was rapt—and probably the only one in my class who looked forward to them.
I realized that these lectures were about what constitutes a free society...and what constitutes a totalitarian one. I realized that the limits on what the state—that is, a police officer—is allowed to do on the street every day determines whether we 7 live in a free society or an oppressive one. If the state can stop you from freely going about your business whimsically, it is a short line from there to dictatorship. If the state can search your person or belongings at will, we are well down the road to an totalitarian government.
The practical concept of probable cause took on profound meaning when viewed from the perspective of, not a limitation on my role as a police officer, but as a necessary principle in a free society. I began to see the genius in the courts' distinctions between a police officer's hunches, reasonable suspicion, and probable cause, and the different ways in which each permits us to constrain the liberty of a fellow citizen. I saw how the courts have, for the most part over the years, been guided by common sense is setting down the limits on police power in confusing and dynamic situations.
I would not want to live in a society that did not have these limits; in a society where the police could break down my door, or throw me in prison, or detain and search me at will. Because we have these limits on state power (and are also the most prosperous country in the world—no coincidence), thousands of people every year risk their lives (and sometimes lose them) trying to get here. Now yes, the courts have sometimes decided badly. And certainly we often know who the bad guys are, and can't do anything about it because of the fourth amendment limits on our powers. And yes, society is getting worse. Yes, the courts' interpretations of the fourth amendment sometimes make our job harder..and sometimes even impossible.
Freedom vs. Security
Yes, things could be better. But would you really want to live in a society without these protections?
Now, in this post September 11th world, Americans have been asked the question by pundits, “How much freedom will you give up for how much security?” And, of course, the Patriot Act has been the lightning rod for this discussion. But I submit that that question assumes a false premise. Look at it this way. The police are charged with investigating and preventing crime. In order to do that job, they, as a simple matter of fact, have to have the tools to do it (you can't dig a ditch without a shovel.) Those tools that are needed are ones that are proportional to the means that criminals have at their disposal.
Therefore, the tools and powers that the police must be able to use are dictated by the capabilities of the criminals. And we can pretty much objectively define these tools. The issue of freedom and oppression thus should not be centered around the tools we as law enforcement have at our disposal, but the capriciousness with which we are allowed to use them. That is, on our responsible use of them, based on strict necessity and probable cause. — RM
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