John Whitehead's Commentary
Supreme Court Approves Another Attack on Our Homes
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.--The Fourth Amendment to the Constitution of the United States
Once upon a time, a group of men decided that enough was enough. At one time, the British had actually stationed soldiers in their homes. Now they were faced with the possibility that local police could enter the homes of citizens at will. So when it came time to write the Constitution, our founding fathers added the Bill of Rights to protect Americans from overzealous police. And for many years thereafter, a person's home was considered his or her castle. But not anymore.
Take, for instance, Estelle Newcomb. Around 9:40 one night, Estelle's otherwise quiet evening was interrupted by the unexpected crash of her door being kicked in. Local drug investigators stormed into her quaint Virginia home while Estelle was busy working on her computer. They drew their weapons and began screaming at the 50-year-old to get down on her hands and knees. Not knowing who had just barged into her home or why they were there, Estelle was frightened into compliance. It was only after one of the officers recognized Estelle from the community that the raid unit realized they had mistaken her house for that of a drug smuggler. And while it is fortunate that Estelle was not physically harmed, her sense of security and privacy was completely shattered.
Estelle's story is not uncommon--police mistakes occur more often these days as the police overstep their authority. That is why we have the Fourth Amendment, which guarantees Americans the right to be free from unreasonable searches and seizures by the government. Unfortunately, it has been greatly weakened by decades of U.S. Supreme Court opinions that favor government access to our homes. In fact, it seems as if there are two very different versions of the Fourth Amendment: the original, which guaranteed personal privacy and freedom, and today's abused rule of law, which has been littered with countless judicial exceptions.
And with two new members occupying seats on the U.S. Supreme Court, the judicial assault on the Fourth Amendment has continued. On Thursday, June 15, 2006, Justice Antonin Scalia, writing for a slim 5-4 majority, concluded that the longstanding rule requiring police officers serving a search warrant to knock and announce their presence is no longer necessary. This ruling in effect permits police officers to barge into a home unexpectedly without any warning at all, just as the police did to Estelle Newcomb.
In justifying a drastic change of course, Scalia deemed it more important to protect police investigations than the rights of citizens. "The cost of entering the lottery," opined Scalia regarding the knock and announce requirement, "would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card."
Yet this line of reasoning eviscerates the Fourth Amendment's warrant requirement. The historical purpose of the longstanding knock and announce rule was to protect police, citizens and civil liberties and, just as importantly, to ensure that police mistakes do not result in incidents such as what occurred to Estelle Newcomb. More importantly, such reasoning runs counter to the original ideas of the founders when the Fourth Amendment was written.
Indeed, the framers believed that property and privacy rights were paramount--even over public safety. In fact, around the time of the Bill of Rights, police were almost never permitted to enter one's home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen's home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant--which the police had to allow the citizens to read before arresting them.
Furthermore, like today, life as a police officer in 1787 was dangerous. Serious crimes such as thievery, murder and even attacks by foreign invaders were common. But unlike today's Supreme Court, our founders understood that for the protection of all--police, citizens and fundamental privacy--there must be reasonable restrictions placed on law enforcement officers.
Moreover, undermining the protections of the Fourth Amendment will not only place the peace, privacy and security of Americans at risk, the protection of law enforcement officers and innocent victims of police mishaps will also be in jeopardy. Surprising ordinary Americans or dangerous criminals by storming into their homes can only create dangerously hasty reactions--and will force citizens to exercise their right of self-defense.
Finally, this Supreme Court decision encourages illegal and abusive activity on behalf of the police who are supposedly the servants of the taxpayers. Because of this court decision, "we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids," said Radley Balko of the Cato Institute. "We can expect to see more innocent civilians wrongly targeted."
We all want to be able to live safely and securely in our homes without the fear of our doors being smashed down and guns shoved in our faces. Is that too much to expect?
Once upon a time, a group of men decided that enough was enough. At one time, the British had actually stationed soldiers in their homes. Now they were faced with the possibility that local police could enter the homes of citizens at will. So when it came time to write the Constitution, our founding fathers added the Bill of Rights to protect Americans from overzealous police. And for many years thereafter, a person's home was considered his or her castle. But not anymore.
Take, for instance, Estelle Newcomb. Around 9:40 one night, Estelle's otherwise quiet evening was interrupted by the unexpected crash of her door being kicked in. Local drug investigators stormed into her quaint Virginia home while Estelle was busy working on her computer. They drew their weapons and began screaming at the 50-year-old to get down on her hands and knees. Not knowing who had just barged into her home or why they were there, Estelle was frightened into compliance. It was only after one of the officers recognized Estelle from the community that the raid unit realized they had mistaken her house for that of a drug smuggler. And while it is fortunate that Estelle was not physically harmed, her sense of security and privacy was completely shattered.
Estelle's story is not uncommon--police mistakes occur more often these days as the police overstep their authority. That is why we have the Fourth Amendment, which guarantees Americans the right to be free from unreasonable searches and seizures by the government. Unfortunately, it has been greatly weakened by decades of U.S. Supreme Court opinions that favor government access to our homes. In fact, it seems as if there are two very different versions of the Fourth Amendment: the original, which guaranteed personal privacy and freedom, and today's abused rule of law, which has been littered with countless judicial exceptions.
And with two new members occupying seats on the U.S. Supreme Court, the judicial assault on the Fourth Amendment has continued. On Thursday, June 15, 2006, Justice Antonin Scalia, writing for a slim 5-4 majority, concluded that the longstanding rule requiring police officers serving a search warrant to knock and announce their presence is no longer necessary. This ruling in effect permits police officers to barge into a home unexpectedly without any warning at all, just as the police did to Estelle Newcomb.
In justifying a drastic change of course, Scalia deemed it more important to protect police investigations than the rights of citizens. "The cost of entering the lottery," opined Scalia regarding the knock and announce requirement, "would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card."
Yet this line of reasoning eviscerates the Fourth Amendment's warrant requirement. The historical purpose of the longstanding knock and announce rule was to protect police, citizens and civil liberties and, just as importantly, to ensure that police mistakes do not result in incidents such as what occurred to Estelle Newcomb. More importantly, such reasoning runs counter to the original ideas of the founders when the Fourth Amendment was written.
Indeed, the framers believed that property and privacy rights were paramount--even over public safety. In fact, around the time of the Bill of Rights, police were almost never permitted to enter one's home without permission or in a deceitful manner. And it was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen's home. Unlike today, early Americans could resist arrest when a police officer tried to restrain them without proper justification or a warrant--which the police had to allow the citizens to read before arresting them.
Furthermore, like today, life as a police officer in 1787 was dangerous. Serious crimes such as thievery, murder and even attacks by foreign invaders were common. But unlike today's Supreme Court, our founders understood that for the protection of all--police, citizens and fundamental privacy--there must be reasonable restrictions placed on law enforcement officers.
Moreover, undermining the protections of the Fourth Amendment will not only place the peace, privacy and security of Americans at risk, the protection of law enforcement officers and innocent victims of police mishaps will also be in jeopardy. Surprising ordinary Americans or dangerous criminals by storming into their homes can only create dangerously hasty reactions--and will force citizens to exercise their right of self-defense.
Finally, this Supreme Court decision encourages illegal and abusive activity on behalf of the police who are supposedly the servants of the taxpayers. Because of this court decision, "we can expect to see an even more pronounced increase in the use of illegal, military-style no-knock raids," said Radley Balko of the Cato Institute. "We can expect to see more innocent civilians wrongly targeted."
We all want to be able to live safely and securely in our homes without the fear of our doors being smashed down and guns shoved in our faces. Is that too much to expect?
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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