My Turn by Blaine Gorney: Who’s watching the watchers?

  • Posted: Monday, July 15, 2013 12:41 a.m.
Blaine Gorney
Blaine Gorney

With recent revelations that an alphabet soup of government agencies may have violated personal freedoms, we should study what has happened to the Fourth Amendment. I am not a constitutional attorney, but here are some cases that seem relevant to the issue.

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.


Application

Amos v. U.S., (1921): The U.S. Supreme Court concludes that Fourth Amendment protections may be waived. This means that if a person consents to a search, he or she gives up the right to be free from an “unreasonable” search.

Wolf v. Colorado (1949): The Supreme Court finds that Fourth Amendment protections against unreasonable searches and seizures apply to officers of state governments, not just officers of the federal government.

Katz v. U.S. (1967): The court prohibits electronic surveillance such as wiretapping without a warrant. An immaterial intrusion with technology is a search.

Weakening of the founders’ intent

Terry v. Ohio (1968): The Supreme Court recognizes an exception to the general rule and decides that police may “pat down” the outside of a suspect’s clothing and search the immediate area for weapons when they have a “reasonable suspicion” of illegal activity.

New Jersey v. T.L.O. (1985): The Supreme Court says that the Fourth Amendment applies to public school officials but that a less strict standard applies. Instead of probable cause, school officials may conduct searches based on reasonable suspicion that school rules are being violated. The search must be limited to confirming that suspicion.

The Patriot Act (2001): Enacted by President Bush after being passed by Congress, the act increased the authority of intelligence agencies to gather information through searches of e-mail and phone communications as well as medical, library and financial records of individuals. In 2007, a U.S. District Court in Oregon struck down the provision that allowed law enforcement to conduct secret searches without probable cause and also ruled that secret wiretaps violate the Fourth Amendment. In 2011 President Obama signed a four-year extension.

Kentucky v. King (2011): The court said that officers who heard sounds indicating that evidence was being hidden or destroyed and smelled marijuana could enter the house without a warrant.

In 2012, the Supreme Court ruled that the installation of a tracking device on a suspect’s car without a search warrant was unconstitutional. The ruling said that use of the GPS device constituted a search and that police needed to have a warrant.

That same year, the court also ruled that officials may strip-search people arrested for any offense, however minor, before admitting them to jails even if the officials have no reason to suspect the presence of contraband. In dissent, Justice Breyer noted a nun was strip-searched after an arrest for trespassing during an antiwar demonstration.

Just last month, the Supreme Court ruled 5-4 that the Constitution does not prohibit states from building large DNA databases by collecting samples from everyone arrested for serious crimes. Even Justice Antonin Scalia joined the dissenting opinion on this case.

There are many who think the extensive surveillance tactics being used are perfectly fine if we have nothing to hide or are not doing anything wrong. I’m reminded of a line from a movie: “We are not watching you; we are watching out for you.”

Remember what Ben Franklin wrote: “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither”. One of North Carolina’s most respected statesmen, the late Sen. Sam Ervin, said: “Each time we give up a bit of information about ourselves to the government, we give up some of our freedom.”

 If Orwell’s prediction is correct, they will monitor, search, find and arrest members of society who could potentially challenge authority and the status quo, even if only by thought.

“Liberty and justice for all” increasingly resembles a good pizza; those founding principles are devoured one slice at a time until there is none left!

Blaine Gorney, Ph.D., has lived in Salisbury for 30 years and retired from higher education after 35 years.

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