Thursday, August 15, 2013

Stepping back from stop-and-frisk

Earlier this week US District Judge Shira Scheindlin declared New York City's stop and frisk program to be unconstitutional. She found that the program targeted minorities in poor sections of the city and subjected them to the humiliation of being forced to lean up against a wall while a police officer patted them down.

The mayor, Michael Bloomberg, and the police chief, Ray Kelly, were predictable in their blasting of the judge's decision. They attempted to explain how the police wouldn't stop anyone without reasonable suspicion that something was afoot - that something was generally walking or standing while black or brown.

It helped that the numbers didn't bear out the official rational for the program. As my fellow blogger, Scott Greenfield, has pointed out on prior occasions, it was rare for the police to find anything remotely illegal on any of the folks whose privacy and right to be left alone they violated.

But the larger question is not whether the program was constitutional or not. The larger question is how we got here in the first place. How did we get to the point that the Fourth Amendment means nothing? How did we get to the point where we don't have the right to be left alone by those in the employ of the government?

It's because of the entire nature of Fourth Amendment jurisprudence. Just think about it. When do questions of Fourth Amendment violations arise? If you said only when the defendant was caught with something he or she shouldn't have had, you're right.

The only time the meaning of the Fourth Amendment is litigated is when someone has been charged with a crime. For those folks who had nothing illegal on them, in their car or in their house, there was no violation of the Fourth Amendment. Sure, the cops may have searched their person, their car or their home without a warrant or without probable cause, but if nothing was found then no criminal charges were ever filed.

And, if no charges are filed, there is nothing to litigate.

Every suppression hearing before a judge involves a defendant who is actually guilty of the crime with which he's been accused. Just about every case brought before an appellate court questioning the constitutionality of a search is brought by the person who was convicted of the crime.

Instead of looking at the process and determining whether or not the police stepped out of line along the way, the judges are weighing whether or not the deterrent effect of the Exclusionary Rule outweighs the conduct the defendant is accused of. In other words, courts aren't looking at the actual words in the Fourth Amendment, they are looking at the defendant's conduct and determining whose conduct was worse - that of the defendant or that of the police.

That, my friends, is a fight the Constitution will lose, more than it wins. It's why we have the so-called automobile exception to the Fourth Amendment. It's why we have Terry stops. It's why judges rule that someone sitting in the back of a patrol car with their hands cuffed behind them isn't considered under arrest. It's why the police are allowed to make pretextual traffic stops for behavior that wouldn't even be looked at twice in the middle of the day. It's why the NSA is allowed to collect the metadata from your emails. It's why the NSA is allowed to intercept phone calls without notifying either party to the call.

But, much like the blades of grass pushing up through the charred and desolate remains of a wildfire, the Fourth Amendment showed some signs of life this week.

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