John Whitehead's Commentary

Americans are not safe in their homes.

Not anymore, at least.

This present menace comes from the government and its army of bureaucratized, corporatized, militarized mercenaries who are waging war on the last stronghold left to us as a free people: the sanctity of our homes.

Government agents—with or without a warrant, with or without probable cause that criminal activity is afoot, and with or without the consent of the homeowner—are now justified in mounting home invasions in order to pursue traffic violators, seize lawfully-owned weapons, carry out knock-and-talk “chats” with homeowners in the dead of night, “prevent” individuals from harming themselves, provide emergency aid, intervene in the face of imminent danger, serve as community caretakers, chase down individuals suspected of committing misdemeanor crimes, and anything else they can get away with.

This doesn’t even begin to touch on the many ways the government and its corporate partners-in-crime may be using surveillance technology—with or without the blessing of the courts—to invade one’s home: with wiretaps, thermal imaging, surveillance cameras, and other monitoring devices.

However, while the courts and legislatures have yet to fully address the implications of such virtual intrusions on our Fourth Amendment, there is no mistaking the physical intrusions by police into the privacy of one’s home: the toehold entry, the battering ram, the SWAT raid, the knock-and-talk conversation, etc.

Whether such intrusions, warranted or otherwise, are unconstitutional continues to be litigated, legislated and debated.

Two cases before the U.S. Supreme Court this term, Caniglia v. Strom and Lange v. California, are particularly noteworthy.

In Caniglia v. Strom, police want to be able to carry out warrantless home invasions in order to seize lawfully-owned guns under the pretext of their so-called “community caretaking” duties. Under the “community caretaking” exception to the Fourth Amendment, police can conduct warrantless searches of vehicles relating to accident investigations and provide aid to “citizens who are ill or in distress.”

At a time when red flag gun laws are gaining traction as a legislative means by which to allow police to remove guns from people suspected of being threats, it wouldn’t take much to expand the Fourth Amendment’s “community caretaking” exception to allow police to enter a home without a warrant and seize lawfully-possessed firearms based on concerns that the guns might pose a danger.

What we do not need is yet another pretext by which government officials can violate the Fourth Amendment at will under the pretext of public health and safety.

In Lange v. California, police want to be able to enter homes without warrants as long as they can claim to be in pursuit of someone they suspect may have committed a crime. Yet as Justice Neil Gorsuch points out, in an age in which everything has been criminalized, that leaves the door wide open for police to enter one’s home in pursuit of any and all misdemeanor crimes.

At issue in Lange is whether police can justify entering homes without a warrant under the “hot pursuit” exception to the Fourth Amendment.

The case arose after a California cop followed a driver, Arthur Lange, who was honking his horn while listening to music. The officer followed Lange, supposedly to cite him for violating a local noise ordinance, but didn’t actually activate the police cruiser’s emergency lights until Lange had already arrived home and entered his garage. Sticking his foot under the garage door just as it was about to close, the cop confronted Lange, smelled alcohol on his breath, ordered him to take a sobriety test, and then charged him with a DUI and a noise infraction.

Lange is just chock full of troubling indicators of a greater tyranny at work.

Overcriminalization: That you can now get pulled over and cited for honking your horn while driving and listening to music illustrates just how uptight and over-regulated life in the American police state has become.

Make-work policing: At a time when crime remains at an all-time low, it’s telling that a police officer has nothing better to do than follow a driver seemingly guilty of nothing more than enjoying loud music.

Warrantless entry: That foot in the door is a tactic that, while technically illegal, is used frequently by police attempting to finagle their way into a home and sidestep the Fourth Amendment’s warrant requirement.

The definition of reasonable: Although the Fourth Amendment prohibits warrantless and unreasonable searches and seizures of “persons, houses, papers, and effects,” where we run into real trouble is when the government starts dancing around what constitutes a “reasonable” search. Of course, that all depends on who gets to decide what is reasonable. There’s even a balancing test that weighs the intrusion on a person’s right to privacy against the government’s interests, which include public safety.

Too often, the scales weigh in the government’s favor.

End runs around the law: The courts, seemingly more concerned with marching in lockstep with the police state than upholding the rights of the people, have provided police with a long list of exceptions that have gutted the Fourth Amendment’s once-robust privacy protections.

Exceptions to the Fourth Amendment’s warrant requirement allow the police to carry out warrantless searches: if someone agrees to the search; in order to ferret out weapons or evidence during the course of an arrest; if police think someone is acting suspiciously and may be armed; during a brief investigatory stop; if a cop sees something connected to a crime in plain view; if police are in hot pursuit of a suspect who flees into a building; if they believe a vehicle has contraband; in an emergency where there may not be time to procure a warrant; and at national borders and in airports.

In other words, almost anything goes when it comes to all the ways in which the government can now invade your home and lay siege to your property.

Thus we tumble down that slippery slope which might have started out with a genuine concern for public safety and the well-being of the citizenry only to end up as a self-serving expansion of the government’s powers that makes a mockery of the Fourth Amendment while utterly disregarding the rights of “we the people.”

Frankly, as I make clear in my book Battlefield America: The War on the American People, it’s a wonder we have any property interests, let alone property rights, left to protect.

Yet as John Jay, the first Chief Justice of the United States, rightly observed: “No power on earth has a right to take our property from us without our consent.”

WC: 1093

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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