The Siege on the Fourth Amendment

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What do sobriety checkpoints and the controversial practice of civil asset forfeiture have in common? They are at odds with the Fourth Amendment.

It’s a tricky thing, the Constitution of the United States of America. Our founding fathers compiled for us a very explicit list of powers that are bestowed upon the federal government and a specific set of enumerated rights protected by said federal government. This very explicit list has one flaw; modern Americans really don’t get the meaning of the words “explicit”, “specific” or “enumerated”. Inexplicably, the varying degrees of the United States Government ignore their very deliberately outlined boundaries routinely, much to the detriment of the good and law abiding civilians of this country.

The most contested issue, at least publicly, is the Second Amendment. We are clearly entitled to the right bear arms according to the constitution, but there is still debate. A less public yet equally important issue is law enforcement’s relationship to the Fourth Amendment, which protects the American people from unreasonable search and seizure of property. Violations of the Fourth Amendment by those tasked with protecting us come in many forms, but the most recognizable are Sobriety Checkpoints and Civil Asset Forfeiture.

What is Civil Asset Forfeiture? If you don’t know, you are by no means alone. In a
nutshell, it is the seizure of money or goods by law enforcement under the suspicion that the item(s) in question were illegally obtained. Sobriety Checkpoints are a bit more recognizable. So, why is it that these two common acts by law enforcement go mostly unnoticed by the average individual? To be blunt, we rarely hear about Civil Asset Forfeiture, though it happens quite frequently. It happens during traffic stops on the side of the road, and then it immediately migrates to behind closed doors. Sobriety Checkpoints, on the other hand, are a regular and very visible occurrence on United States Highways. These checkpoints only serve to catch drunk drivers, however, so nobody bats an eye. Despite the good intentions of both practices, there is an argument to be made that they are blatant violations of constitutional rights protecting us from unwarranted search and seizure. Although the two have their similarities, they must be individually investigated.

Sobriety Checks

Checkpoints on a stretch of highway late in the evening are a standard sight in the United States. The hardworking state trooper spends his evening out on the roads, protecting us all from drunk drivers, rather than spending time at home with his family. He stops cars, checks for signs of drunkenness, and sends non-offenders on their way. Nothing could be wrong with this, right?

Isn’t it absurd to question a practice which only stands to protect the lives of innocent people just trying to make their way home from dinner or a late night at work? No, not really. Sobriety checks are, in literal terms, a warrantless search of a person. The Fourth Amendment to the United States Constitution ensures “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures…and no Warrants shall issue, but upon probable cause…”

Courts have ruled that possessions on a person’s body are included under the word “persons”, and a vehicle cannot be searched without a warrant or permission. An officer absolutely cannot cite that an individual driving a vehicle down a stretch of road meets the standard for probable cause or even “reasonable suspicion.” Americans pay for our cars, we pay for the roads, and we pay for the officer that patrols them. There is no way in which the government should be able to tell us that we have to be subject to random searches just for using the roads and vehicles we ourselves own.

The real meat of the controversy regarding Sobriety Checkpoints is not the constitutionality of the search of a person within an automobile. Unquestionably, it is unconstitutional for an officer to force you to submit to a sobriety check when you are simply driving on a road. Someone swerving all over the highway is a different story, of course, as it gives reasonable suspicion to investigate on the officer’s part. When you have done nothing wrong, however, an officer has no right to force you to be searched at random.

The controversy involves whether it is beneficial to society to have these checkpoints. Many of the left would probably say that, yes, sobriety checks benefit society, and this outweighs the inherent unconstitutionality of the situation. Conservatives have also shown a blatant disregard for the Fourth Amendment, exchanging it for a surveillance state promoting the “common good.” This is how they rationalized wiretapping and allowing drone strikes to be used within the United States against US Citizens, as well as allowing the indefinite detainment of

American Citizen “terror suspects,” all made legal by the 2011 National Defense Authorization Act. The section was written by Senator John McCain. But where does a member of the Liberty Movement stand on the issue?

Libertarians tend to be extremely defensive of privacy. The ideology would generally seem to tend against these types of situations. Although I can’t claim that all libertarians believe this, there does not seem to be an inherent problem with sobriety checks.

Drunk drivers are dangerous criminals, not because they intend to hurt anyone, but because nearly 10,000 people per year die as a result of drunk driving; 1,000 of these people are children younger than fourteen years old. Because there are no direct, innocent victims in a sobriety check, and there is the opportunity to prevent needless deaths, I can’t see a reason to disagree with this practice on moral grounds. The only problem that needs to be solved, in this case, is the constitutional crisis presented.

Civil Asset Forfeiture (CAF)

This is a big issue. CAF nets the various federal, state, and local governments of America $12 billion annually. It is, potentially, a massive weapon in the war on drugs, in fighting cartels, and in fighting organized crime. In fact, this is the exact reason it came into being. Initially used on a broad scale to enforce prohibition, CAF has been historically used to battle drugs and alcohol, being reinstated again for the so-called War on Drugs. It was seen as a way to steal profits from drug dealers while at the same time funding law enforcement. Reagan Attorney General Richard Thornburghpointed out that “It’s now possible for a drug dealer to serve time in a forfeiture-financed prison after being arrested by agents driving a forfeiture-provided automobile while working in a forfeiture-funded sting operation.”

Theoretically, this is a great idea. Profits made by selling illegal substances and goods are not subject to taxes, indirectly shifting the burden of running this country onto those of us who do pay taxes on our income. It is, thus, inherently unfair for criminals to keep this income without paying a share, as the rest of us do. For that reason, CAF shouldn’t be an issue for the law abiding American. Sadly, as with anything government does to try and help, Civil Asset Forfeiture snares innocent people in its net all the time. People traveling with large sums of cash get pulled over for speeding and end up losing thousands because they can’t prove they didn’t get the money through illegal means. Part of the issue in CAF cases is that because they are not criminal cases, victims do not have access to a lawyer provided by the state.

This disproportionately affects poor people who cannot afford to pay an attorney on their own. A bias against the lower classes in this case has led to a strange relationship in advocacy against the practice, with libertarians and the ACLU banding together to fight Civil Asset Forfeiture. Democrats have typically been against CAF since the 1980’s, while Republicans tend to support the practice, though groups like the House Freedom Caucus and its Senate allies have come out against it.

Where does a libertarian stand? This is more open and shut for the liberty movement than Sobriety Checkpoints. It is absolutely wrong and unconstitutional for police to confiscate property without a warrant. It is wrong to take someone’s home because he was caught running a poker game with gambling out of his basement. In far too many cases, Civil Asset Forfeiture is not a crime fighting tool. It is theft. The State should not be allowed to commit grand larceny in the name of protecting the common good.

The Fourth Amendment and You

As Americans, our rights are the most important possessions we have. Any violation of our most basic rights—security in our possessions, due process, self defense, freedom of expression—should be treated with skepticism at the least and with outright disobedience if necessary. In the case of Sobriety Checkpoints, skepticism and watchfulness are needed to keep the practice within the bounds of truly being a good thing. In the case of Civil Asset Forfeiture, innocent people should not stand by and watch as their property is stripped from them. The Fourth Amendment is your friend, and you should never be afraid to stand behind it.

Aidan Mattis is a student at The Pennsylvania State University.

 

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