Just this week, as I was commenting on Section 1021 of the National Defense Authorization Act of 2012 or National Defense law that was signed by President Barack Obama, the question came up of whether the Supreme Court would rule this offending portion unconstitutional. My response follows:
As far as the Supreme Court declaring Section 1021 of the NDAA legislation unconstitutional, I would not be so sure. Even the éminence grises of American jurisprudence confuse sensible “law and order" conservatism with "collectivist authoritarianism," as they have done frequently in the past and did more recently when they ruled to give the police excessive powers in vehicle searches in 1981 and again in random searches in 1991.
First, I was referring to the New York v. Belton decision of 1981. The New York Times noted, "Police officers have for a generation understood themselves to be free to search vehicles based on nothing more than the fact that they had just arrested an occupant. That principle, Justice John Paul Stevens acknowledged in his majority opinion, 'has been widely taught in police academies and law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years.' "(1)
Although the Supreme Court (Arizona v. Gant) in 2009 limited significantly the old power of the police to search the cars of people they arrest without a warrant, it is still too wide, in my opinion, and with other precedents such as stopping vehicles at road block, etc. – the new decision hangs by a thread!
Moreover, I was told be friends, whose car were illegally searched that all the law enforcement officer has to do is to impound the vehicle, claim the need to make an inventory before the car is taken to the lot, and then proceed to search the car. At that point they have searched your car without your permission circumventing the constitutional requirement against illegal searches. At other times, they just refuse to obey the law and search the vehicle anyway. Defense attorneys advise clients to refuse the searches anyway because if the police are corrupt and plant something in your car, one can always fight in court on facts as well as legal technicalities.
The New York Times also noted, "Justice Scalia said he would have overruled Belton outright and substituted a rule that allowed searches of vehicles in connection with arrests only where the search seeks evidence of the crime for which the arrest was made or another one for which there is probable cause. He added that he joined the majority opinion to avoid a 4-1-4 decision that leaves the governing rule uncertain. Justice Samuel A. Alito Jr., joined in full by Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy and for the most part by Justice Stephen G. Breyer, said the broad Belton rule was sensible and easy to apply."(1)
Justice Clarence Thomas has always been correct in this type of ruling protecting freedom, balancing the requirements of sensible law and order with individual liberty. I am glad Justice Antonin Scalia supported Thomas on that ruling. Nevertheless, one must notice that the "conservative" and "liberal" justices became strange bedfellows, commingling with impunity, on that ruling.
Again The New York Times correctly asserted: "The justices divided in an unusual fashion. Justices Ruth Bader Ginsburg, Antonin Scalia, David Souter, and Clarence Thomas joined the majority opinion. Chief Justice John Roberts and Justices Stephen Breyer and Anthony Kennedy were in dissent along with Alito." (1)
And this is what I mean when I write that many conservatives confuse "law and order" conservatism with "collectivist authoritarianism." And freedom gets lost in the confusion!
Second, let me just note for the record that random civilian checkpoints have been upheld by the Supreme Court for conducting sobriety checkpoints where there is no probable cause. Notwithstanding, we have been told that our automobiles have been deemed an extension of our homes in legal rulings and numerous statues.
The Fourth Amendment to the U.S. Constitution reads: "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 the persons or things to be seized."
The Huffington Post elucidated, "By a 6-3 decision in Michigan Dept. of State Police v. Sitz (1990), the United States Supreme Court found properly conducted sobriety checkpoints to be constitutional. While acknowledging that such checkpoints infringed on a constitutional right, Chief Justice Rehnquist argued the state interest in reducing drunk driving outweighed this minor infringement."(2)
I am not opposed to the police stopping anyone upon the probable cause of drunk driving or suspected drug use, but road blocks for random searches or sobriety tests is another story. And calling this invasion of privacy a "minor infringement," in my humble opinion, is a very cavalier attitude toward freedom and evinces a short-sighted knowledge of historical reality.
Have we forgotten Thomas jefferson's admonition, "The natural progress of things is for liberty to yield and government to gain ground"?(3) So why not keep the "compelling interest" standard a bit more stringent, in the interest of preserving liberty, that precious jewel our forefathers fought and died for?
1. Liptak, Adam. Supreme Court Cuts Back Officers’ Searches of Vehicles. The New York Times, April 21, 2009.
2. Sherman, Mark. Supreme Court Limits Warrantless Vehicle Searches. The Huffington Post, January 6, 2012.
3. Thomas Jefferson letter to E. Carrington, 1788.
Written by Dr. Miguel Faria
This article was published exclusively for HaciendaPublishing.com on January 6, 2012. The article can be cited as: Faria MA. Vehicular serches and random checkpoints — Is your car an extension of your home? HaciendaPublishing.com, January 6, 2012. Available from: http://www.haciendapub.com/randomnotes/vehicular-searches-and-random-che...
Copyright ©2012 Miguel A. Faria, Jr., M.D.