Requiem for an Amendment: What Does Freedom Look Like?
Has this happened to you, or someone you know?
Imagine a person, driving down a Minnesota road on their way home for dinner. They just attended a Thursday after-work happy hour. They had two drinks, ended the two hour event with a Sprite, and headed for home.
But their tires touched a lane marker, and they got pulled over. Shortly after admitting that yes, they drank some alcohol prior to driving, this person is placed under arrest. Handcuffed, placed in the back of a squad car, an armed and uniformed law enforcement agent transports them to the nearest jail.
At the jail, this person is sat down in a windowless, concrete room; nothing but a table and two chairs. They're still sitting there in handcuffs when another armed and uniformed law enforcement officer enters the room. This agent reaches into a drawer, and pulls out a single sheet of paper.
In a monotone voice, echoing through the room, the agent begins speaking at you. You've been placed under arrest for driving while impaired. We want to perform a warrantless search of your body. You are required by Minnesota law to consent to this search. If you don't consent to this search, we'll be charging you with another crime - a crime called test refusal. You can try to call an attorney, but if you take too long, we're just going to consider you to have refused. If you do reach an attorney, he's ethically obligated to tell you to take this test.
Will you consent to this warrantless search and seizure?
Now, ask this person (who may or may not be you) do you feel like you even have the option to say no here? You've just been told that you are required to submit to a search by law, and that if you don't, you're automatically guilty of yet another crime. Sounds a little . . . coercive, doesn't it? More than a little, in fact: short of threats of physical violence, can you imagine a more coercive situation?
Now imagine that you are in court, before a judge. That judge looks you square in the eye, and says, "I don't find anything coercive about what went on in that windowless room between you and the police. In fact, I find that you freely and voluntarily consented to this search; it was your choice, and your choice alone.|
Does that sound like America, land of the free, and home of the brave? Or does it frighten you?
This argument is being played out in courtrooms around Minnesota; judges are being asked to determine what does - and what does not - count as |consent.| There are a lot of favorable cases directly on point, but I'm not going to cite to them today. Today, I'd rather cite to different types of cases.
Cases involving dissents. The types of cases where some justices thought that the majority got it wrong, that the Constitution was being thrown under the bus, that the document that makes Americans free was being marginalized and ignored. Because its happened before, and the only thing that will prevent it from happening again is conscientious judges and zealous defense attorneys.
If you were coerced into submitting to a warrantless search, make sure you lawyer up. Sometimes even the most basic legal doctrines - like whether or not someone has freely and voluntarily consented to waiving a crucial constitutional right - can become far more complex than you'd imagine.
And now some quotes:
|The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all. Rather, the issue here is whether the Government's deployment in that war of a particularly Draconian weapon-the compulsory collection and chemical testing of railroad workers' blood and urine-comports with the Fourth Amendment. Precisely because the need for action against the drug scourge is manifest, the need for vigilance against unconstitutional excess is great. History teaches that grave threats to liberty often come in times of urgency, when constitutional rights seem too extravagant to endure . . . when we allow fundamental freedoms to be sacrificed in the name of real or perceived exigency, we invariably come to regret it.| Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 635, 109 S.Ct. 1402, 1422-1423 (1989) (J. Marshall, dissenting)
|[C]onstitutional rights have their consequences, and one is that efforts to maximize the public welfare, no matter how well intentioned, must always be pursued within constitutional boundaries. Were the police freed from the constraints of the Fourth Amendment for just one day to seek out evidence of criminal wrongdoing, the resulting convictions and incarcerations would probably prevent thousands of fatalities. Our refusal to tolerate this specter reflects our shared belief that even beneficent governmental power-whether exercised to save money, save lives, or make the trains run on time-must always yield to |a resolute loyalty to constitutional safeguards.| The Constitution demands no less loyalty here.| Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 650, 109 S.Ct. 1402, 1431 (1989) (J. Marshall, dissenting)
|If law enforcement were the chief value in our constitutional scheme, then due process would shrivel and become of little value in protecting the rights of the citizen. But those who fashioned the Constitution put certain rights out of the reach of the police and preferred other rights over law enforcement. . . Under our system of government, police cannot compel people to furnish the evidence necessary to send them to prison.| Breithaupt v. Abram, 352 U.S. 432, 414, 77 S.Ct. 408, 442-443 (1957) (J. Douglas, dissenting)
|Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Olmstead v. United States, 277 U.S. 438, 479, 48 S.Ct. 564, 572 (1928) (J. Brandeis, dissenting)
|Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.| National Treasury Employees Union v. Von Raab, 489 U.S. 656, 687, 109 S.Ct. 1384, 1402 (1989) (J. Scalia, dissenting)
|Several years ago, Mr. Justice Stewart reminded us that â??(t)he Constitution guarantees . . . a society of free choice. Such a society presupposes the capacity of its members to choose.' I would have thought that the capacity to choose necessarily depends upon knowledge that there is a choice to be made. But today the Court reaches the curious result that one can choose to relinquish a constitutional rightâ??the right to be free of unreasonable searchesâ??without knowing that he has the alternative of refusing to accede to a police request to search.| Schneckloth v. Bustamonte, 412 U.S. 218, 277, 93 S.Ct. 2041, 2073 (1973) (J. Marshall, dissenting)
|It is regrettable that the obsession with validating searches like that conducted in this case, so evident in the Court's hyperbole, has obscured the Court's vision of how the Fourth Amendment was designed to govern the relationship between police and citizen in our society. I believe that experience and careful reflection show how narrow and inaccurate that vision is, and I respectfully dissent.| Schneckloth v. Bustamonte, 412 U.S. 218, 290, 93 S.Ct. 2041, 2080 (1973) (J. Marshall, dissenting)