Tuesday, August 2, 2016

The Fourth Amendment and Justice for All

   In March (1933) the Nazis awarded themselves new powers to arrest suspects and search homes at will.  
Sarah Bakewell, At the Existentialist Café, Other Press, N.Y., 2016, p. 75.

Comment:   The presidential election this year is crucial for the advancement of the cause to achieve a legal base for justice – justice for all.  Whom will the new president appoint to the Supreme Court?   Consider a Bill of Rights issue, the fourth amendment to the Constitution and the analysis of William C. Snowden, a public defender in New Orleans.  (Bill Lange)

The Fourth Amendment of the Constitution of the United States of America – Search and arrest warrants:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated,  and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and persons or things t be seized.”

Warrantless Strife 
by William C. Snowden

   This used to be the Fourth Amendment of the United States Constitution.  After the United States Supreme Court decision in Utah v. Streiff it is unclear what protections against unlawful, warrantless and suspicionless stops by the police remain in place.

   Edward Strieff was walking out of a house that was under police surveillance due to a tip suggesting the home was involved in drug activity.  This was not a tip about Mr. Strieff but about the structure he was walking out of.  Without seeing when Mr. Strieff entered the house, without seeing a hand to hand transaction, and without seeing anything else to suggest Mr. Strieff had committed, was committing, or was about to commit a crime, a police officer stops and detains Mr. Strieff.  Up to this point, the majority of the Court agrees the officer did not have reasonable suspicion – what is required under Terry v. Ohio to stop Mr. Strieff.  But upon running Mr. Strieff’s name as the result of the unlawful stop, a traffic warrant is discovered, he is placed under arrest, and the drugs found on Mr. Strieff are declared lawfully seized – despite the initial stop being unlawful.

   Constitutional scholars critiquing this opinion may call it a “slippery slope.”  They are wrong!  We have slipped off the cliff – free falling into an abyss where the police are able to stop you without a valid reason then justify the stop if they find you have a completely unrelated warrant.
   The expression “do not rob Peter to pay Paul” parallels police who are committing a crime to solve a crime.  But now, as stated by the strongly dissenting Justice Sotomayor, “the Court today holds the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.” (If you have not already, read Justice Sotomayor’s dissent immediately.)  The Fourth Amendment used to be a safeguard against police and prosecutors reaping any “evidentiary benefit” of unlawful searches.  Today that safeguard is no longer in place.

   When reading the opinion written by Justice Clarence Thomas, one can envision how the police will abuse this exception to the protections of the Fourth Amendment.  The police are now given an incentive to stop more people on the chance they have a warrant which will justify the stop.  This is particularly concerning in minority, low income communities, and communities with large immigrant populations.  This case of Utah v. Stieff posed a unique opportunity to bring back some strength protecting our civil liberties; instead, it has weakened it for the empowerment of police abusing their authority.  
William C. Snowden 
Attorney at Law 
Public Defender Office 
New Orleans, Louisiana

Comment:   I asked Attorney Marc Christopher for a response from the point of view of an immigration attorney.  Marc represents clients from the Workers Center, Voces de la Frontera in Milwaukee, WI.  (Bill Lange)

A Responce

   Despite popular belief, we do not live in a democracy, which is ‘rule by the majority,’ but rather a republic, which is ‘rule by law.’ Our Constitution, more specifically, our Bill of Rights sets forth protections of individual liberties. By design, these protections were created for people who are at opposition with the majority—or do not have the political power to protect themselves. Two hundred thirty years of history demonstrates that the Bill of Rights often protects individuals that look different, speak different, hold differing religious views, lack economic resources and education and, perhaps, unfamiliar with our culture and systems of governments. 

   My law practice is focused on Immigration and immigrant rights. Immigrants, perhaps more so than any other category of people, consistently fall into these categories I mentioned before. Right now states (see Arizona) are passing laws which allow officers to ask for immigration documentation upon being stopped by police—if an illegal stop is no impediment to a law enforcement fishing expedition—the 4th amendment no longer applies to our immigrant population.  


Marc E. Christopher

Christopher & De León Law Office
1578 West National Avenue

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