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Supreme Court Erodes Key Check On Government Power


Constitution of the United States: Amendment IV

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.

Our colleague, Mark Fitzgibbons says in a recent article for The Washington Examiner that Americans have good reason to fear and loathe the latest creative interpretation of the Fourth Amendment bt the Roberts Court because it weakens the rule of law over government.

The Supreme Court’s recent 8-1 decision in Heien v. North Carolina says Fitzgibbons "sadly turns the old slight 'close enough for government work' into Fourth Amendment jurisprudence."

Briefly, the facts in Heien v. North Carolina are that a North Carolina police officer pulled over Nicholas Heien because one of his car’s brake lights was out. The state’s law requires only one light to be working, so the stop was based on a mistake of law.

After Heien was pulled over, he gave consent for the officer to search his car. The officer found cocaine in the car, then placed Heien under arrest.

Heien later claimed the initial stop was not legal under the Fourth Amendment of the U.S. Constitution. The Supreme Court ruled that the mistake for the initial stop, which was a seizure under the Fourth Amendment, was reasonable and therefore lawful.

As Fitzgibbons observered in his article for The Washington Examiner, "The Fourth Amendment’s economy of words belies its breadth, complexity and history vis-a-vis tyranny. The saying “Every man’s home is his castle” is found in the common law that leads up to the amendment.

"The Fourth Amendment protects our most personal property and our most intimate rights. It is a protection for every aspect of our lives including phone calls, emails, our work product, our very bodies.

"It is a protection of liberty, property, even life — since stops or searches by our militarized government sometimes turn violent. It is a legal control on government preceding the sacrosanct right of due process.

"The Fourth Amendment is intended as a hedge against totalitarian acts by government. Cracks in the amendment’s foundation and misapplication by its enforcers are the basis of a police state, so it’s not a law for which the judiciary should be generous in the government’s favor."

But from our perspective, the scariest thing about Heien is that only one Supreme Court Justice got it right, and that was Justice Sonya Sotomayor.

While Chief Justice John Roberts’ creative and harmful majority opinion in Heien claims precedent, writing that the “ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” Sotomayor grasped that what was really at stake in the case is:

“The meaning of the law is not probabilistic in the same way that factual determinations are. Rather, ‘the notion that the law is definite and knowable’ sits at the foundation of our legal system. ... Departing from this tradition means further eroding the Fourth Amendment’s protection of civil liberties in a context where that protection has already been worn down.”

The term “probable cause” says Fitzgibbons found in the Fourth Amendment means that there is an objective suspicion that a law has been or is about to be broken. The amendment is designed to prevent the government from doing what is unlawful without probable cause. The ultimate touchstone of the Fourth Amendment, therefore, should be the laws being enforced -- not the "reasonableness" of the purported error by the government.

The decision in Heien concluded Fitzgibbons "lowered the bar of expectations for all sorts of government searches and seizures, and that cannot be reasonable under the Fourth Amendment."

Click the link to read the complete article by Mark Fitzgibbons "Supreme Court ruling erodes key check on government power."

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