Monday, June 14, 2010

What happened to our 4th amendment right?

In Illinois there is a recent standing history of the 4th amendment being chipped away.   At this point it is essentially non-existent.   I'll explain what happened, and when, the why's and the hows are beyond my analysis abilities at this point.

For years cars have been treated less like personal property, and more like state property.   Think of the 4th amendment in this context, "How would Thomas Jefferson react if a local police thug wanted to search his carriage without warrant?"  This is an argument used often by defense lawyers.  The colonial period response would be that the thug would be disallowed access to his carriage.  Now, what if the thug pulled out a weapon affixed at Mr. Jefferson, demanding entry, and that he stand down.   We know we would soon find a LOT of dead thugs.   This is a right so entwined in common sense, which is that no one has a right to your stuff, no matter what it is.   The same right that has been perverted for the last century, but many examples appear in the last 10 years.  

In Illinois v. Lidster 540 U.S. 419 (2004), the Supreme Court decision allowed what is known as focused informational checkpoints. However, discretionary checkpoints or general crime-fighting checkpoints are not allowed.  Regardless of these restrictions, Lake and Cook County Sheriff's police routinely set up DUI checkpoints, which in my opinion count as crime-fighting checkpoints, and not informational.   What's worse, is the police have no right to any information without due process, so these checkpoints should be entirely useless.   I have been through a number of them personally, the sheriff's thugs ask you to get out of the car, and when you do you lock your door behind you.   They instantly get suspicious, and want to get in your car.  Even though I have nothing to hide, they have no right to rifle through my belongings, and worse, I have good reason to suspect that they don't like me already and would be willing to plant criminal material in order to "bust" me for their satisfaction.  

In Illinois v. Caballes, 125 S. Ct. 834 (2005), The defendant was stopped for speeding by an Illinois State Trooper. While the first officer temporarily held the defendant in his police car while writing a warning ticket to the driver, another officer walked his canine around the defendants car. The canine "alerted" at the trunk of the car, and the officers searched it.  They found marijuana in the trunk.
The officers were able to make this search stick using something known as a holding.   What this particular holding means is the officers did not need probably cause to use a canine as long as the detection occurred while the defendant was detained in a lawful manner.

The real beginning to the end was Carroll v. United States, 267 U.S. 132 (1925), in which a probable cause search was loosely defined as: "a flexible, common-sense standard."  Conveniently this case was heard during America's first "war on drugs": prohibition.  This means that probably cause can be redefined as almost limitless things, so long as it "sounds" like common sense to a judge or jury.

No comments:

Post a Comment