Legal Feature


Right to Privacy is Eroding



February 13, 2006

By John W. Whitehead

Around 9:40 one night, Estelle Newcomb's otherwise quiet evening was interrupted by the unexpected crash of her door being kicked in. Local drug investigators stormed into her quaint Virginia home while Newcomb was busy working on her computer. They drew their weapons and began screaming at the 50-year-old to get down on her hands and knees.

Not knowing who had just barged into her home or why they were there, she was frightened into compliance. It was only after one of the officers recognized Newcomb from the community that the raid unit realized it had mistaken her house for that of a drug smuggler. While the homeowner fortunately escaped physical injury, her sense of security and privacy was shattered.

Sadly, Estelle Newcomb's story is not uncommon. There are many such devastating occurrences that strike at the very core of our constitutional freedoms. Modern police surveillance is more invasive than ever. Laws are passed granting the government unfettered access into the most private matters of our lives. Meanwhile, late-breaking news floods our TV screens, reporting the most recent episodes of police brutality.

Despite all these signs, many fail to recognize that the most important protection of our constitutional liberties - the Fourth Amendment - is crumbling.

The Fourth Amendment guarantees that we are to be free from unreasonable searches or seizures by the government. And while many continue to hear such legal phrases, the rights themselves have suffered extreme diminishment over time. In fact, two very different versions of the Fourth Amendment seem to exist: the original, which guaranteed personal privacy and freedom, and today's abused rule of law, littered with countless judicial exceptions.

Our Founding Fathers, who drafted the Bill of Rights, were deeply concerned about preserving personal liberty and property rights. Indeed, many considered freedom in one's home the most essential liberty. They really did believe that a man's home is his castle.

The Framers believed that property and privacy rights were paramount - even over public safety. In early America, citizens were considered equals with law-enforcement officials. The authorities were almost never permitted to enter one's home without permission or violate a domicile in a deceitful manner. It was not uncommon for police officers to be held personally liable for trespass when they wrongfully invaded a citizen's home.

NO WARRANT, NO ARREST

Also, unlike their modern-day counterparts, early Americans could resist arrest when a police officer tried to restrain them without a proper justification or warrant - which the citizen had a right to read before being taken to jail.

This clear demand for a right to privacy was not a result of simpler times. Like we do today, early Americans dealt with problems such as petty thievery, murder and attacks by foreign enemies. The demand for privacy stemmed from a harbored suspicion of law-enforcement officials and the unbridled discretion they could abuse.

Tragically, the essential liberties that were aggressively afforded to early Americans by the Fourth Amendment have largely disappeared. Worse, many Americans have lost focus of the importance of the essential liberties the Fourth Amendment protects. We turn a blind eye to everyday intrusions into our privacy. We seem to care more about the newest reality TV show than we do about the fact that our government can, and does, use gizmos such as advanced thermal-imaging devices to watch our every move.

We fail to fully grasp the significance of reports about people getting shocked by police tasers or laws granting the government unfettered access to the books we read. Many of us scoff at the idea that police practices such as those employed in DUI and drug checkpoints - while used in hopes of saving lives - often strike a brutal blow to our most fundamental liberties.

In fact, while most law-enforcement agents strive to honor and respect the Constitution, many of today's police tactics and equipment conflict starkly with the "freedom" vision of the Framers. Equipment utilized by police - such as sophisticated flashlights containing super-sensitive detectors that sense the contents of your breath, and cyberized taps that detect the information you read and write on your computer - undermines the foundation of our liberties.

Despite our privacy rights, police conspicuously situate these invasive devices in front of our faces and into our personal space. Likewise, they frequently use minor breaches of the law - such as failing to fully stop at a stop sign - to justify a complete, but often unnecessary, search and seizure of our persons and belongings. Most disturbing, they often use lies and deceit to gain access to our homes, cars and other private possessions.

FREEDOM'S DEATH - BY DEGREES

Unfortunately, the U.S. Supreme Court has been a willing accomplice in this depreciation of essential freedoms. Supreme Court opinions are plagued with countless exceptions that pervert the letter and spirit of the Fourth Amendment. Such cases include language the Framers never foresaw nor intended, such as the "protective sweep" exception, the "hot pursuit" exception, the "inevitable discovery" exception and the "good faith" exception. Worse, the courts use rationales such as police safety, national security and citizen protection to justify these intrusive and corruptive interpretations.

Unlike historical "officers of the peace," many modern police departments act and dress like paramilitary units. Instead of seeking to protect us, they present themselves in a manner to intimidate and coerce us. Many contemporary police units wear black, military-style uniforms and display a host of weapons that some don't hesitate to use.

Consider the story of Malaika Brooks. What began as a routine traffic stop quickly escalated to a nightmarish display of unnecessary police hostility. Brooks, eight months' pregnant, was pulled over by Seattle police for speeding. When she refused to sign the ticket, the officers treated her as a belligerent criminal, using a taser gun to send a 50,000-volt shock of electricity through her child-swollen body.

These officers took advantage of their broad discretion and ignored their responsibility to respect her rights. Instead of handling her as a dangerous criminal, these cops should have approached Malaika Brooks as a citizen whose constitutional rights are valuable and with a commitment to protect those rights.

Incorporating such respect into police encounters with citizens is the only way the Fourth Amendment will keep functioning. Police officers must be trained to know, understand and discern constitutional rights. After all, the Constitution is the very document they have sworn to honor and uphold.

Finally, we the people are also responsible for protecting our rights. Why do many simply shrug their shoulders at abuses of rights that early Americans not only enjoyed but demanded?

Thomas Jefferson remarked, "Eternal vigilance is the price of liberty." He understood quite clearly that once we give our freedoms away, we will never get them back. Jefferson was right. When citizens' Fourth Amendment protections are undermined, our most precious freedoms are not just in jeopardy - they are destroyed.