Saturday, April 20, 2013

Can the Police Search My Home for a Bomber?

From:  Freedom Foundation 

David Roland

Director of the Theodore L. Stiles Center for Liberty


Today in Watertown, Massachusetts, law enforcement officials are going from house to house with trained SWAT team snipers drawing a bead on any occupants and instructing those occupants to exit the houses so the police can enter and search the premises.
Is this constitutional?
Contrary to this article posted on, constitutional rights do not evaporate whenever the government decides they would be inconvenient.  Police have no right to expel citizens from their homes or to engage in warrantless searches of those homes just because the government declares that an emergency exists.
The Fourth Amendment makes clear that people have a right for their persons and homes to be secure against unreasonable searches and seizures, and that judges must not issue warrants permitting the government to intrude upon someone's home unless there is a clear reason to believe that a specific thing or person will be found in a specific, identified location.  The Washington Constitution is even more protective of citizens' rights, stating that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law."

Police Search
Courts have, by-and-large, allowed certain exceptions to these constitutional rules, such as if the police see a potential criminal enter someone's property and there is no time to obtain the warrant that would otherwise be necessary to follow the suspect.  This is known as the "hot pursuit" doctrine.  Courts also usually recognize an exception if police believe that intruding on a citizen's property is necessary to assist someone threatened with immediate harm or injury.
But these exceptions do not apply to the circumstances in Watertown.  The police do not know where the suspected criminal is, and they have no reason to believe that he is in any specific house in Watertown.  Neither do they have any reason to believe that any specific citizen of Watertown is in immediate danger of harm or injury.  And, importantly, they also have no reason to believe that any specific citizen is harboring the suspect in their home.  
Thus, this entire operation is one gigantic fishing expedition - and that is precisely the sort of thing forbidden by the Fourth Amendment and Article I, section 7 of the Washington Constitution.  
The police can warn people to be on the lookout for the suspect.  They can ask for permission to search a citizen's home.  But unless they have clear reason to believe that the suspect is on a specific property and that he might escape in the time necessary to obtain a warrant, the police cannot constitutionally force citizens out of their homes or engage in a warrantless search of those homes.
I can hear some people now saying, "But surely these are special circumstances..."
They are not, and it is extremely dangerous for the very idea of constitutional liberty to presume that citizens may be stripped of their rights whenever the government declares it necessary.  History teaches us that one exception breeds another, and that pattern will continue until the exceptions destroy the rule.  Once the principles of liberty have been sacrificed, it is exceptionally difficult for them to be recovered.  We must remain vigilant and steadfast in our protection of our rights, and we must not allow fear to lead us to abandon those rights.
UPDATE: Some people have raised questions about the assumptions I made when writing this post.  I'd like to address that issue.
First, let's look at some of the underlying facts.  Last night police engaged the suspect in an exchange of fire while in the vicinity of Watertown.  In the course of that engagement, the suspect is believed to have used firearms and explosive devices.  He escaped the scene and the police assume that he did so on foot, which may be why they believe that he remains in the area.  The police also apparently believe that he remains armed and dangerous.
With that information at hand, some have noted that the Fourth Amendment only protects citizens against unreasonable searches and seizures, suggesting that if the police believe that an armed, dangerous person is in a certain area it would be reasonable for them to search any of the property in that area, even without first obtaining a warrant.  They have contended that we cannot know what the police know, so we are in no position to judge whether the police action is "reasonable" or not.  Some have also posited that the searches taking place may be strictly voluntary, in which case no warrant is necessary.
Here is my response:
I'll start with the question of whether the searches that we're talking about could be said to be "voluntary" - in which case there is simply no constitutional question raised.  Here's some video of what was taking place today.  I count nearly a dozen law enforcement officials outside the house, weapons drawn, and that's before the armored personnel carrier (and its heavily-armed occupants) arrived.  According to this first-person account, property owners were being identified by name and asked to come to their doors, where they were greeted by heavily armed men.  It's not clear if citizens were being instructed to exit their homes with their hands up, but apparently many of them were doing so.  Under these circumstances, I strongly question whether anyone could feel that they had a right to demand that the police show a warrant before entering onto their property; if a citizen wanted to argue that the "consent" that they offered under these circumstances was not voluntary, I think they would have a very good case.  That said, I am not currently aware of any person who told police that they would not leave their home or that the police could not search their home without first obtaining a warrant.  

But let's say, hypothetically, that someone did demand that police must show a warrant.  Could the police simply ignore that demand and proceed with an unwarranted search?
I think not.  It is true that warrants are not always necessary, although courts have generally suggested that unwarranted searches are presumed to be unconstitutional.  The question, then is whether the search the police intended to conduct would be "reasonable" under the circumstances.  As I noted in my primary post, courts have determined that it is "reasonable" for police to enter property without a warrant if they are in "hot pursuit" of a suspect or if they have reason to believe that someone is in such eminent danger that there is no time to obtain a warrant.  And, as stated above, I believe that neither of those circumstances is present in Watertown - which is supported by the fact that the precise whereabouts of the suspect are not known and there does not appear to be any identifiable person in immediate danger of harm.

But isn't it sufficient that the police have reason to believe that the suspect is in the general area?  Isn't that enough for unwarranted searches to be "reasonable?"  I don't think so.  Part of the reason we have constitutional protections against unwarranted searches and seizures is so that the government will have to put evidence in front of an impartial judge so that the judge will be able to determine if that evidence is sufficient to justify intrusion into citizens' homes and privacy.  If the police have reason to believe that the suspect is in a certain vicinity, they should seal off that area, then ask a court for a warrant to search any property in that area for the suspect.  If the judge believes that the evidence is adequate, the police will have their warrant and the constitutional concerns I have raised become moot.  But if the judge thinks the evidence is not adequate to issue a warrant, the Fourth Amendment should safeguard the people against being compelled to allow unwanted police intrusion onto their property. 
Furthermore, if in asking for permission to inspect property the police observe some new evidence that leads them to believe that the suspect is present, they can then take that evidence to a judge and seek a warrant for that specific property.  Thus, there are clearly ways that the police could proceed with a legitimate search for a suspect while staying within the bounds of constitutional limitations.  And where the police can conduct searches within constitutional boundries, I believe it is imperative that they do so.  Again, if we make exceptions, they will eventually swallow the rule.

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