Tuesday, October 20, 2009

4th amendment


The third amendment, for those curious, simply states that we don't have to house soldiers anymore.... I felt like trying to debate that one would be silly. Its not controversial, (anymore), and, I imagine that some of us would be HAPPY to house a soldier in need...

So, without further ado, here is my take on the fourth amendment. I must say, thus far, this has actually been the toughest one....

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.

This amendment is one, admittedly, that I started out not really knowing anything about it’s creation, or why our forefathers needed it to be.

What I’ve learned, is that the British were very fond of something called a “writ of assistance", which pretty much gave them the right to search for anything, anywhere, at any time, without expiration or cause. You see, they didn’t want any “prohibited or uncustomed” goods in the hands of the Americans.

So, they would search. Repeatedly, and take what they found, or what they wanted. Especially in lean times, because they needed to feed their army. These writs only expired six months after the sovereign died, which means as long as the king was alive, any home could be searched, and any goods taken, since most things were prohibited and uncustomed. Smuggling was at its height during this era, since there was a blockade in place preventing the delivery of supplies to the shores of America. I imagine the people were pretty sick of having strangers go through their homes, and supplies, and seeing said supplies get taken by His Majesties red coats. To feed the other red coats. I would hazard a guess that the loyalist homes were searched far less often than any of the “rebels”. I completely understand why our forefathers sought to prevent this. It would get very old, very quickly.

As important as this amendment was for them, it is just as important for us. Probably the most important phrase in this amendment, one that gets debated, and hung up on a regular basis is “probable cause”. One definition that I have found in my search is this:

"a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true". (wikipedia). I am guessing that the judge is meant to be the prudent and cautious person. But, as I am sure we all realize, judges are people, with their own failings, and frailties, and I am positive that the fine people who work in law enforcement are aware of which failing and or frailty most judges have, and apply for their warrants accordingly. Were I in their shoes, I would do the same.

None the less, probable cause must be demonstrated. And can be very subjective. Another point of this amendment that frequently comes under fire is what is specifically included in the search warrant itself. If a room, or a person, or a car is searched that was not included in that warrant, any evidence that has been gathered will more than likely be in-admissable. This can, and has, make or break any case that comes up in front of any judge. It can get a guilty person freed on a technicality. The person doing the investigation, searching the homes, and effects must follow that warrant to the letter. I would not want that job.

As an aside, though, my question is this. When a house is searched, do they really toss the house, and leave it a big, giant mess? If they don’t find anything do they send someone to clean the house? I would be a very angry citizen indeed if, for some reason, law enforcement came in and wreaked my house. But I digress...

I do have another question. One that was not even a consideration for our forefathers.


I bet, the first time a computer got searched, it was hotly debated. Is it considered our “papers”? We keep most of our documents in computers these days. It is one of our effects. Which is specified in the amendment. Do they have to, specifically site computers on the search warrant? Do they bring a computer specialist to the house to break into the computer, and read what’s on it, or do they simply take the modem with them. If they find no other evidence in the house what so ever, CAN they just take the modem to search at their leisure? I obviously, have never been searched. Nor do I plan on being searched. Besides, all they’d really have to do is read my blog do decide that though I am a nut job, I am an innocent nut job....


sybil law said...

Computers, emails, etc - certainly fall under that now. As they should, if there's some probably cause.

DaddyKaos said...

They just take the computer and hack into whatever they think they need. You may or may not ever see it again and it may or may not contain the same data as it did when they confiscated it.