Frontera NorteSur November 2000

For example, last year in Wyoming v. Houghton, 526 U.S. 295 (1999), the Supreme Court through Justice Scalia, held that when an officer has probable cause to search a car, he may search everything in the car, including the purse he knows belongs to the passenger who is not suspected of any crime. Likewise, in Minnesota v. Carter, 119 S. Ct. 469 (1998) the Court saluted the investigative efforts of an officer who had left the sidewalk he was walking on, walked across a yard, stepped over or around some bushes located in front of an apartment window, peered through a window and then some gaps in the blinds. Justice Breyer said that the officer's "chosen method—observing the apartment from a public vantage point—would more likely have saved an innocent apartment dweller from a physically intrusive, though warrant-based, search if the constitutionally permissible observation revealed no illegal activity." 119 S. Ct. 481.

So, when you wake up to some form of law enforcement looking in your window, be grateful--they could have kicked in your door. As one scholar observed "the question is not whether you or I must draw the blinds before we commit a crime. It is whether you and I must discipline ourselves to draw the blinds every time we enter a room, under pain of surveillance if we do not." We now know that the answer to this question is yes, lower the blinds--but even then blinds are no guarantee that surveillance will end.

The intolerance exhibited towards the Fourth Amendment in these opinions also illustrates the denigration of common sense and reasonableness in Fourth Amendment jurisprudence. The routing of common sense in these sorts of opinions comes from the justices' and judges' inability to understand what we the people feel is reasonable.

Reasonableness is the touchstone of the Fourth Amendment and the reasonableness test was meant to protect the rights of the people, not the prerogatives of the Government. Justice Breyer's writing in Carter illustrates that perfectly: most people do not want police officers or anyone else peering in their windows. We have arrived at a place where judges cannot understand that concern.

And why is that? Justice Frankfurter said in his dissent in U. S. v. Rabinowitz, "it is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." Perhaps because the courts have forgotten that the Constitution and its Bill of Rights were written to meet the contingencies of the future. The Fourth Amendment must be interpreted in a way to give it a sense of a "real world" legitimate expectation of privacy. It should accord to our citizens what reasonable, non-lawyer people go through life thinking are legitimate expectations of privacy.

Yet, too often, the courts fall into the fallacy of thinking their Fourth Amendment decisions resonate only in Court; in a court where the person before them has be caught red-handed in criminal activity. This narrow focus blinds the courts to the effects of their decisions on the greater society. The judges, justices and worst of all, politicians end up viewing the Fourth Amendment as a mercenary mouthpiece or an apologist for criminal behavior. Such views are absolutely wrong. Fourth Amendment decisions affect all of us, because they affect how law enforcement officers view people. Fourth Amendment decisions determine how free, or unfree, all of us are.

For example, those of you who have been stopped for an alleged traffic infraction have the Supreme Court's decision in Whren v. United States, 517 U.S. 806, to thank for the interrogation (and even the search) you can be subjected to during such a stop. If you commit a traffic infraction, you can be stopped and it does not matter that the officer has intentions of going beyond investigating the infraction. And, of course, once you are validly stopped, the officer can extend his seizure and escalate his search beyond the infraction, if he sees further suspicious circumstances after the stop has been made.

These type of stops have become so routine and pervasive that passengers also are being questioned about matters totally unrelated to the basis for the stop. My seventy-five year old father was questioned by a border patrolman riding along with a local police officer while I was questioned behind the vehicle by the police officer. On another occasion while my wife was being questioned by the state trooper who allegedly stopped us for speeding the other trooper came to the passenger side, rapped on the window and attempted to ask me questions such as where we were coming from, where we were going, who did I work for, how long I had been living in the area, how long my wife and I had been married. I refused to answer his questions. He walked backed to his partner, told him I refused to answer his questions and then interrogated my wife.

So what can be done to revive the Fourth Amendment? First of all, we must recognize that we cannot leave the Fourth Amendment's status to lawyers and judges to protect for us. We must begin by letting the people in charge of our government know what we think and we should encourage our friends to say what they think. When we are pulled over because we had the temerity to drive along or near the border we should note the officer's name and badge number. We should inquire why we were stopped. One person—a white woman riding with another white woman, who happened to be a state judge—was told that she was stopped because the agent did not recognize her. We must tell people about those sorts of inappropriate stops. When we see unreasonable behavior by law enforcement officers we should let somebody know about it: the newspaper, the city council, our senators.

We need to make it clear that we seek not to polarize the situation, but simply to restore balance. The police are supposed to be public servants, not controllers of the public. If enough people act we may penetrate the inner sanctum of the courts and law enforcement agencies and provide judges and public officials with a better sense of what is commonly believed to be reasonable behavior. This will help the judiciary return to the broader perspective embraced by Justice Frankfurter that the Fourth Amendment is more important to us than obtaining any one conviction.