Last month, the United States Supreme Court, in an 8-1 decision in the case of Kentucky v. King, told the police in our nation that they may break into a home without a warrant if they believe that the occupants might be in the act of destroying evidence.
Only Justice Ruth Bader Ginsberg realized that this might be the last nail in the coffin of one of the most important personal protections left for Americans. While the politicians in Washington are fiddling away our economic security, the Supreme Court has lit a match that will burn up what is left of the right of privacy and the Fourth Amendment’s protections against unreasonable searches and seizures.
While the tax-avoiding patriots were dumping taxable tea in the harbor at Boston, men like Patrick Henry and John Adams were more concerned, and rightly so, with the loss of personal liberties in the Colonies.
Perhaps none of the “protective” amendments to the U.S. Constitution has as much connection with the events leading up to the American Revolution against England and its king than does the Fourth Amendment.
This amendment, more than all of the other “Bill of Rights,” is directly associated with specific acts that led, ultimately, to the call for a complete break from England and for the establishment of a separate nation.
Perhaps the most succinct observation about the dichotomy between those who see a continuing erosion of the Fourth Amendment and those who see it as an impediment to law enforcement officers and prosecutors can be found in a more reasoned Supreme Court decision from 1948. In that opinion, the court stated:
“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence ... [it demands that] the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.”
In February 1761 in Boston, there was a widely publicized debate over the issuance of general, limitless search warrants called Writs of Assistance. James Otis, a lawyer in Colonial Massachusetts, in a famous 1761 debate, condemned the use of these general search warrants, declaring them to be untenable in a land of free men.
But he did make a suggestion that later formed the basis for part of the Fourth Amendment. He suggested that any lawful searches be made only pursuant to warrants that contained explicit restrictions as to where the search was to take place and to the objects of the search, and that the warrants be issued only upon the making of specific oaths by the person seeking to carry out the search.
Patrick Henry followed the news reports of the debate over the use of these general search warrants (those authorizing searches at any time the holder of the search warrant deemed it necessary to search someone’s home or business) and he also argued against the abuses of such writs of assistance.
In 1778, during the constitutional debates before passage of the Bill of Rights, he argued for congressional consideration of a series of amendments to the constitution, one of which guaranteed the security of the citizenry against unreasonable government searches. This proposed amendment quite clearly presupposed that an “unreasonable” search could be avoided only by use of a warrant, and only if that warrant met certain standards.
After the adoption of the Fourth Amendment there appeared to be a general understanding of the nature and extent of the protections afforded citizens from searches without proper judicial warrants.
Up until the Supreme Court’s decision in Kentucky v. King, there was a general acknowledgment that the Fourth Amendment is a living creation with the ability to adapt its protections to new and ever-changing technology. Despite some erosion of the historical protections found in the Bill of Rights, there has been the hope that the Supreme Court would continue to regard the Fourth Amendment as necessary to protect citizens from the government.
Unfortunately, eight members of the present Supreme Court have decided that the Fourth Amendment is nothing more than a historical relic that has outlived its welcome in our “free” society.
Michael Mears, an associate professor of law at Atlanta’s John Marshall Law School, is the former director of the Georgia Public Defender Standards Council.
About the Author
