In 1761, a young lawyer, John Adams, was sitting in a Massachusetts courtroom as James Otis fiercely argued against continuing to give British agents the limitless right to search the homes of American colonists. That night Adams wrote in his diary that on this day, "the Child, Independence, was born."
So vital to the Framers of the Constitution were protections against arbitrary search and seizure that the Fourth Amendment is the most precise part of the Bill of Rights. Yet increasingly, judges -- in disregard of the Framers' intentions -- have weakened the Fourth Amendment. With William Brennan gone from the court, for instance, the exclusionary rule -- illegally obtained evidence cannot be used at trial -- is not likely to survive the decade.
Also under judicial attack in various parts of the country is the linchpin of the Fourth Amendment: the requirement of a warrant, based on probable cause, before there can be a lawful search.
A recent decision by the full bench of the Second Circuit Court of Appeals has -- according to dissenting judge Amalya Kearse -- given "law enforcement officers broad license to enter premises without a warrant. ... After this decision, there appears to be little left of the warrant requirement in narcotics cases."
The "war on drugs" continues to be more effective in undermining the Constitution than the drug trade.
In this case, United States of America v. Errol MacDonald, Drug Enforcement Administration agents -- on a tip from an informer -- had beenaware for four months that traffic in narcotics appeared to be taking place in a New York apartment.
Finally, one night, agents watched the apartment for several hours. There was no indication that those inside the apartment suspected they were under surveillance. A little before 10 p.m., one of the agents, posing as a consumer, entered the apartment and bought $5 worth of marijuana. He noticed some cocaine as well as some loaded guns. No one spotted him as a law enforcement agent. When he left, business went on as usual.
Ten minutes later, seven DEA agents, with guns drawn and carrying a battering ram -- but not a search warrant, although there was plenty of probable cause by now to get one -- knocked on the door.
According to the court record, there had not even been any discussions about obtaining a search warrant or contacting an assistant U.S. attorney. The agents had, however, taken the time to let the local police precinct know what was going on, and the precinct sent several police cars as backup.
On knocking, one of the agents, identifyinghimself, said he would like to talk to someone, and in response, there were sounds of attempted flight, including some occupants pushing through the bathroom window. The battering ram disposed of the door, the agents rushed in, arrested those inside and seized the narcotics.
The prosecutors pointed out that a search warrant had not been needed because of the "exigent circumstances" of the entry into the apartment. Exceptions to the warrant requirement include those occasions when taking the time to get one can result in the escape of the suspects and/or the destruction of evidence. Under these circumstances, there is "urgent need" to take action without giving a dispassionate magistrate time to consider whether the entry and the seizure are permitted by the Fourth Amendment.
The constitutional problem in this case, however, is whether the drug agents -- with four months to develop probable cause to get a search warrant -- actually manufactured the "exigent circumstances" so as to make the bust without the bother of getting a warrant.
As Judge Kearse -- one of three dissenters among the 12 judges -- emphasized: "I know of no law, settled or otherwise, that mere firsthand knowledge of a crime constitutes exigent circumstances permitting a warrantless entry."
Kearse emphasized that the majority of her colleagues, in permitting the absence of a warrant, relied principally on the conclusion that "narcotics trafficking is a grave offense." Indeed it is, she said, but "there has never been an exigent circumstances exception permitting a warrantless entry simply because the offense involves narcotics." There is now.
Kearse reminded her colleagues that there is no emergency "when the perpetrators are unaware they are under suspicion... . The agents plainly anticipated that the announcement of their identity would precipitate an exigency... . The agents must be regarded as having deliberately created the exigency precisely to justify their warrantless entry."
If she's right, the strategy worked, and the Fourth Amendment, as well as the door, was kicked in. There is hope, however slight. The Supreme Court has been asked to review the case.