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John Whitehead's Commentary

Will the Supreme Court Rule in Favor of a Police State?

John Whitehead
Constitutional scholars are calling the term of the current Supreme Court the most important one in recent memory. The Court is taking on such vital issues as prayer at school functions, abortion, state autonomy and homosexuals' public accommodation rights.

In the parade of big issues, it's easy to overlook one of the most important series of cases the nine Justices will consider - those dealing with the Fourth Amendment. These cases are important because they will define police power for the next generation. The basic questions involve whether police will be free to randomly interrogate and search private citizens or if individual autonomy will prevail - in other words, whether America will move closer to being a police state.

In its first decision on the issue, the Supreme Court ruled in favor of broader police power. In a 5-4 decision, the Justices said that officers could stop people who ran from them, even if the person wasn't initially a suspect.

But now the Court has a chance to reel in potential police harassment in a case just argued. Florida v. J.L. revolves around whether anonymous tips are sufficient evidence to warrant searching an individual.

The facts of the case are straightforward. An anonymous tipster called police and told them that three boys were standing on a street corner. The one in the plaid shirt, according to the tip, was carrying a gun. Within six minutes, police arrived at the named street corner. They found the boys, searched all three and discovered the gun.

The Florida Supreme Court ruled that the search violated the Constitution. Anonymous tips by themselves, according to the court, are not sufficient to allow the invasive search of a private citizen.

The Florida court made the correct decision. If police acted on every anonymous tip, the potential for abuse would be enormous. Pranksters could get back at people they didn't like by having officers stop and frisk them in public. Police officers themselves could anonymously call in tips on people they were suspicious of but didn't have reasonable grounds to stop and search.

In fact, during recent oral arguments before the Supreme Court, several of the Justices addressed this danger. Justice Scalia raised the possibility of other officers calling in tips. Justice Kennedy said, "We fear [anonymous] tips because of pranks and people who have vendettas. They're generally unreliable."

The lawyer for the state of Florida attempted to argue that the Court should make an exception to this rule for cases involving firearms. In essence, he argued that concerns for the officers' safety made the search necessary.

What this argument really suggests, however, is that when guns are involved, constitutional rights disappear. Under this rationale, police could search everyone who walks by them on the chance that they might be carrying a gun.

Justice O'Connor recognized the weakness in this line of reasoning. During oral arguments, she pointed out that if the officer hadn't responded to the anonymous tip, he wouldn't have been in any danger. Under the state of Florida's approach, police respond to every anonymous tip, and the mere fact of their response makes a search necessary. Thus, every anonymous tip leads directly to an invasive search of someone.

This is clearly a dangerous trend. Hopefully, the Justices weren't simply paying lip service to the Constitution. It's extremely important to recognize that a decision in favor of the police would create a slippery slope toward rampant police harassment of private citizens. Imagine your neighbor, who doesn't like the way you landscape your house, calling an anonymous tip into the police. Officers could show up at your door, demanding to search the premises. This is clearly not the kind of America the framers of our Constitution envisioned.

Even if all police officers were upstanding citizens, protecting the Fourth Amendment would be a democratic imperative. But recent events illustrate that not all policemen are honest. The Rampart investigation in Los Angeles has uncovered reports of officers falsifying evidence, stealing drugs from crime labs and shooting people without cause. Cities like New Orleans have dealt with similar problems in their police forces.

This evidence makes the Court's ruling in Florida v. J.L. crucial to civil liberties. The Justices have expanded police power in various cases. It's time for them to change course and prevent our proud constitutional republic from becoming a police state.

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book Battlefield America: The War on the American People  (SelectBooks, 2015) is available online at Whitehead can be contacted at

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