[IP] WaPo Op-Ed on search and seizure
Begin forwarded message:
From: John Adams <jadams01@xxxxxxxxxxx>
Date: August 2, 2004 8:37:52 AM EDT
To: dave@xxxxxxxxxx
Subject: For IP: WaPo Op-Ed on search and seizure
I've been waiting for someone to say exactly this for a while. He's
dead right on every point.
Here's the money quote: "Of course people shouldn't break the law or
carry illegal objects. But the difference between civilian employees
searching for bombs in airports and government agents conducting random
searches for suspicious objects is the difference between preserving a
free society and creating a police state."
http://www.washingtonpost.com/wp-dyn/articles/A33132-2004Aug1.html
Balancing Security and Liberty
By Peter Moskos
Monday, August 2, 2004; Page A17
When you board a plane, both you and your carry-on bags are searched. A
civilian employee of the Transportation Security Administration may
open and search your checked luggage as well. Although primarily
looking for security threats, workers report any illegal or suspicious
objects to a supervisor or law enforcement agent, even if the object
represents no danger to the flight.
Two legal concepts allow both you and your bags to be searched despite
the Constitution's protection against unreasonable search and seizure.
By being in an airport and trying to board a plane, the Supreme Court
says, you have given "implied consent" to being searched. The "plain
view" principle, according to the court, states that whatever law
enforcement legally finds, feels or sees -- even if unrelated to the
original investigation or search -- is fair game for arrest and
prosecution.
Using security and terrorism as justification, the government is
beginning to extend airport-like implied consent zones to more and more
of the public sphere, including the entire Boston subway system. Before
the Democratic convention, daily commuters, anybody approaching a
national political convention, and drivers on vital bridges and tunnels
were told to expect random searches without a warrant. Fourth Amendment
protection against unreasonable search and seizure does not apply.
When police are granted greater rights to search without probable
cause, they will use these rights. Therefore it's essential to consider
the implications of implied consent and plain view searches in the
public sphere. Fear of increased government repression is shared by
both ends of the political spectrum. But many others understand that a
necessary element of freedom is security. Airline passengers should be
screened. The Democratic and Republic national conventions need to be
bomb-free.
Few people object to bomb searches on airplanes. And many would be
willing to waive their constitutional rights (if such rights were
negotiable) to guarantee their security. But what starts as a necessary
security measure will quickly become standard law enforcement procedure
even for crimes that are nonviolent and not related to terror. These
expanding implied consent zones have staggering implications for
American life and freedom far beyond al Qaeda.
Police officers are experts at bending rules, particularly in the "war
on drugs." As a police officer, I was taught to push the rules of the
"Terry search," which meant that if I articulated fear that a suspect
might harm me, I could legally frisk suspects for weapons without
probable cause. I know officers who towed cars, again legally, simply
so they could "inventory" the contents (technically for safekeeping).
In both cases, the real goal was to find illegal drugs and make an
arrest.
One must expect law enforcement to use all its available tools. As a
law enforcement officer, why deal with the tedious process of probable
cause, judicial approval and paperwork?
In order to stop and search any suspect, not just a terrorism suspect,
law enforcement need only wait for a person to enter an implied consent
area such as a subway or a shopping mall. Their action justified by the
"war on terror," police may then conduct a full search. The true object
of the search -- most likely drug possession, but any contraband will
do -- is unrelated to terrorism.
Of course people shouldn't break the law or carry illegal objects. But
the difference between civilian employees searching for bombs in
airports and government agents conducting random searches for
suspicious objects is the difference between preserving a free society
and creating a police state.
In airport security today, items deemed suspicious are not necessarily
dangerous: Large amounts of cash, pirated CDs, pornography and, of
course, drugs -- not just illegal drugs but even prescription drugs in
certain circumstances. In fact, controversial books can be grounds for
further investigation and arrest. Such a standard, even if established
in airports, is unacceptable and must not be allowed to spread to our
streets and subways.
The solution -- the balancing of public safety with constitutional
liberties -- is surprisingly simple. The only way to prevent creeping
use of implied consent is to limit the doctrine of plain view. Before
searching a person, the government must choose either plain view or
implied consent. If the government must search without probable cause,
let it search, but only for illegal weapons or bombs. If security
outweighs the Fourth Amendment, the scope of such searches must be
limited to objects representing a clear and present danger to public
safety. Any unrelated suspicious or illegal objects found must be
ignored.
It is the job of our courts and legislature to strike the balance
between security and liberty. By limiting the plain view doctrine,
lawmakers or Supreme Court justices have the rare opportunity to be
tough on terrorism while guaranteeing the rights and freedom of
citizens.
The writer, a former Baltimore police officer, is professor of law and
police science at John Jay College of Criminal Justice in New York.
© 2004 The Washington Post Company
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