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John Whitehead's Commentary

Snuffing Out Your Civil Rights

John Whitehead
It's happened to everyone. A traffic police officer pulls you over and approaches your car window, carrying a flashlight. Shining the light into your eyes, the cop asks for your license and registration. But these days, that same officer may be carrying a new crime-fighting tool known as "the sniffer."

The sniffer is a small device that attaches to the end of a flashlight and is used to detect the presence of alcohol in a car. It works by sucking in the air in a vehicle and analyzing it for alcohol fumes. If it registers the presence of alcohol, the officer then conducts a further investigation to determine the source of the fumes.

According to its makers, the sniffer is being used by thousands of police departments around the country. This latest weapon in the fight against drunk driving, however, is actually a threat to more than merely intoxicated persons who take the wheel - it's also threatening drivers' constitutional rights.

The producers of the sniffer, PAS systems of Fredericksburg, Virginia, aren't unaware of the threat. They've even devoted a portion of their website (www.sniffalcohol.com) to dealing with the constitutional issues raised by their product. Their argument is essentially that the sniffer is no different than an officer using his own nose to detect the presence of alcohol. PAS contends that citizens don't have an expectation of privacy in the smells around them and thus have no constitutional basis to challenge the use of the sniffer.

This argument, however, is based on a false premise. Many different states, for example, have found that police officers' use of a thermal scanner to detect unusual heat emanating from a home is a violation of the Fourth Amendment's protection against unreasonable searches.

Analytically, situations in which police use a thermal scanner are no different from those where they use the sniffer. In both instances, they are using technology to significantly enhance their physical senses in a way that invades the expectation of privacy that a person has in their home or vehicle. And in both instances, officers should be required to obtain a warrant - or, in the vehicle scenario, have a reasonable suspicion that the driver is drunk - before using the devices.

There is also a larger constitutional issue at stake in these situations. The man who was one of the primary drafters of our Constitution, James Madison, once warned that we should take alarm at the first experiment with our liberties. While the sniffer may not seem like an egregious civil rights violation on its own, the implications of its widespread use are far-reaching. As technology becomes more powerful, and thus more invasive, precedents allowing devices such as the sniffer could be used to justify their use.

Even without this slippery slope argument, there is still something very troubling about giving the government another avenue to invade our daily lives. Privacy is clearly the most endangered right in modern life. We are under surveillance almost every minute of our daily lives, whether it's from cameras mounted at traffic intersections, corporate marketers on the other end of our internet connections or even satellites circling the planet hundreds of miles above us.

Each one of these invasions begins incrementally - almost always justified as a way to prevent crime or catch more criminals. But then one day we wake up, and George Orwell's dystopia of 1984 has become a reality - Big Brother is monitoring our every move, all because we didn't heed Madison's advice and take alarm at the first sniffing out of our civil rights.
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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