When everyone is a criminal, you don’t need the Fourth Amendment

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.

The Fourth Amendment to the Constitution of the United States. By now, it should be painfully obvious that the Fourth Amendment doesn’t apply to anyone, because there are no more “people” left in the United States, only criminals and potential criminals. Our government spies on us willy-nilly, our legislators erode our rights on a daily basis under the banner of protecting the children and our courts continually perpetuate the notion that there are two groups in the US: “us” and “them”. It is also becoming increasingly clear that “us” refers only to law enforcement and “them” is anyone else.

Yesterday, in Navarette v. California [PDF], Justice Thomas wrote a 5-4 decision in which he upheld a police officer pulling over a car and then finding marijuana.

Now, as Popehat explains, the law before Navarette was as follows:

Traditionally the key to corroboration has been confirmation of incriminating details, not details that any observer could make about a innocent subject. So, for instance, if you call in an anonymous tip that I am running a meth lab in my blue house on the corner, and the cops confirm that I have a blue house on the corner, those details are not meaningfully corroborative. If the cops find evidence of witnesses seeing me move precursor chemicals into my blue house on the corner, that’s meaningfully corroborative.

In Navarette, a driver called 911 to report that another car had “run her off the highway”. In that phone call, the person gave the license plate and description of the car and included her name. The name was not relayed to the police officers and was not introduced in court, so it was treated as being functionally “anonymous”.

Highway patrol officers located the car but did not immediately stop it. Now, from the officer’s perspective, ask yourself why. If the officer believed that he had enough information to stop the car, why didn’t he do so immediately?

Instead, the officer followed the car for approximately 5 minutes. And think about yourself being followed by a police car for an excruciating 5 minutes on a highway.

Here, Navarette drove normally and unremarkably for the full 5 minutes. He did not swerve or commit any traffic violations that he officer was no doubt hoping for. Finally, not getting anywhere, he was pulled over and then the officer “sniffed” marijuana.

So the question becomes, is that functionally anonymous tip enough to stop that car, because it provides reasonable suspicion that “criminal activity is ongoing”.

As Scott notes, if the caller had been present at the hearing and been subject to examination, this would not have been an issue.

But we have a mystery caller who faces no consequences for her actions, who makes certain allegations for which there is absolutely no corroboration, and that information is relied upon to make an arrest.

Two things should immediately jump out at you. In this case, the reasoning given for permitting the stop was that the reported erratic driving was indicative of “drunk driving”. But the officers observed nothing to corroborate that. So how do we know that the initial call was accurate? How do we know it wasn’t Navarette’s ex-wife setting him up?

What’s to stop someone from being vengeful and relaying false information to the police? Police are all too happy to keep people anonymous when they provide tips and in Navarette, the woman was treated as functionally anonymous, so where’s the check?

Second, given the emerging reality that cops aren’t all that honest, what’s to stop them from pulling someone over for absolutely no reason at all, and then later on claiming that they received an “anonymous tip” about the car. Heck, it doesn’t even have to be a “recording error” in the 911 system. They can just claim that they were flagged down by a concerned citizen who didn’t want to be identified.

And then, per Navarette, anything goes.

The idea that a person who does not engage in any behavior that would constitute a crime, let alone a traffic violation, could still get pulled over and have his car searched based on an uncorroborated, anonymous tip should make everyone realize that the Government has no doubt that you are nothing but a criminal waiting to happen.

4 thoughts on “When everyone is a criminal, you don’t need the Fourth Amendment

  1. 30yearProf

    Many states have done better under their own Constitutions. See: Marben v. Commissioner, 294 NW 2d 697 (Minn. 1980)

  2. andrews

    Florida expressly refuses to do better in its Constituion, expressly making the US 4th Amendment a ceiling rather than a floor. State v. Hume, 512 So.2d 185 (Fla. 1987).

  3. hymie!

    Wow. Perhaps I’m over-blowing a situation because it happened to me … but something like this happened to me. According to a court ruling I received

    The Howard County Code does not require an inspector to observe the alleged violation personally. Rather, HCC [Section] 16.1602 imposes upon the Director of Planning and Zoning a “duty to investigate” an alleged violation to determine whether a violation exists or has occurred. Sec. 16.1603.(a)(1) authorizes the director to issue a civil citation to an alleged violator after the issuance of a notice of violation if the violation continues after the reasonable time stated in the notice of violation has passed.

    Nonetheless, administrative due process requires the code enforcement inspection and investigation process to be a standardized operating procedure to ensure consistent compliance with all applicable codes, ordinances, and regulations. In Howard County, zoning inspectors routinely and customarily investigate alleged violations through a site inspection, talking to the alleged violators, neighbors, and either documenting their site inspections photographically or adopting photographs taken by others, subject to authenticating them. This manner of investigation is standard operating procedure in Howard County. The ultimate evidentiary value of an inspector’s investigative findings is determined at a code enforcement hearing, as was the case in this proceeding.

    In other words — and this is my new favorite saying — the Constitution is no longer a list of restrictions placed up on the government. The Constitution is a list of things that, when I realize that the government is doing them to me, I am allowed to sue the government to make it stop.

  4. Pingback: Navarette v. California: Anonymous Tips, Reasonable Suspicion, and Car Stops | Koehler Law

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