The Fourth Amendment Was Meant To Protect All Of Us, Not Just The “Innocent”
When it comes to the protections of the Fourth Amendment, it doesn't matter if you're "guilty" or "innocent," it protects all of us.
Responding to my post about the recent Supreme Court decision that allows officers to arrest someone detained after an illegal stop, Jazz Shaw at Hot Air says the following:
As to the actual legal questions we should have been tackling, I return yet again to what precisely it was that the Founders were trying to say when they established the Bill of Rights. They provided protections for the innocent against government officials using their massive power to bully and oppress them. The government can’t simply harass you and search you without probable cause to believe that you are breaking the law. They can’t quarter troops in your home. They’re supposed to leave you alone if there’s no reason to think that you are acting in a criminal fashion.
Right off the bat, I must note with all due respect that the assertion that the protections of the Fourth Amendment, or any of the other provisions of the Bill of Rights that can become an issue in a criminal case were only intended to protect the innocent simply does not comport with either the text of the Amendments themselves or the history behind it. The first part is relatively easy, of course, because there’s nothing in the text of the Fourth Amendment that suggests that its protections are limited to the “innocent.” The main reason for this, of course, is because the Founders understood the that one of the fundamental principles of English and American law is that a person who is accused of a crime is presumed innocent unless their guilt is proven beyond a reasonable doubt after a trial before a jury or Judge, or if they have agreed to plead guilty under oath. In some sense, then, there is no such thing as a distinction between “guilty” and “innocent” for purposes of the Fourth Amendment, because everyone accused of a crime is presumed innocent until it has been proven otherwise. Additionally, it has been a long standing concept in American law, and in the British law upon which it is based, that it is more important to protect the rights of the accused than to ensure that a “guilty” man is convicted. As the English legal philosopher William Blackstone, who had literally written the book that lawyers in both the United Kingdom and the United States relied on as a primary treatise on the law, famously put it, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.” John Adams himself put it this way when he defended a group of British soldiers accused of murder during the Boston Massacre: (Source)
It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished. … when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.
The ideas behind the amendment can be traced as far back as as the early 17th Century when the great English legal philosopher first proclaimed the idea that we now express as “a man’s home is his castle,” and that English Common Law began to recognize that even the King could not order the search of an Englishman’s home without the issuance of a warrant based on probable cause. The Fourth Amendment exists because the British, through the offices of the King’s representatives in each of the thirteen colonies in North America, had abandoned the practices that had long been established under English Common Law and engaged in widespread searches justified either by generalized warrants that didn’t name specific individuals, or no warrant at all, all in an effort to track down people allegedly evading the increasingly burdensome taxes that the Crown was imposing on the colonies while denying them representation in Parliament. These searches were one of the primary triggers for the American Revolution, and the Fourth Amendment was designed to prevent the new Government from engaging in them by establishing rules under which law enforcement must operate that respect the homes, persons, papers, and effects of individuals by requiring a warrant based on probable cause as well as the circumstances under which someone can be subject to arrest. In other words, the Founders thought a Fourth Amendment was necessary due to the impact that the King’s violation of their rights had on everyone, including people who may have violated the tax laws that the King’s agents were seeking to enforce.
Jazz continues:
And the part of these arguments where Libertarians carp about evidence being found drives me further up the wall. Doug references, “law enforcement acting illegally and using whatever evidence they find however they wish.” Well… yes! Are we really to interpret the Fourth Amendment as meaning that law enforcement must ignore any and all evidence they find unless they already had reason to believe that such evidence would be found? If a cop pulls you over for a busted taillight, strolls up to issue you a ticket and, oh, by the way, notices that there’s a headless corpse in the back seat of your car, do prosecutors have to throw out the existence of the body at your murder trial because they weren’t expecting to find it?
The answer to this question, of course, is no, but it’s not because the Fourth Amendment doesn’t protect the accused in this case. The answer is no because Court’s have long recognized certain exceptions to the Fourth Amendment that recognize the reality of police work and, of course, how the realities of the modern world apply to it. In the hypothetical case that Jazz posits, the initial stop is not illegal since defective equipment on a vehicle is considered a valid reason for a stop in every state in the nation. Additionally, the Supreme Court long ago recognized a “plain view” exception to the warrant requirements of the Fourth Amendment for evidence that is in plain view of an officer, an exception that makes sense given that there really isn’t an expectation of privacy in something that is in plain view. The situation would be different if there had been no valid reason for a stop in the first place, but that would be an entirely different story from the hypothetical posited. This is different from the case at issue in my original post, because everyone conceded that the stop was illegal from the start and that the accused should have been permitted to go about their business.
As it turns out, Jazz and I have had this disagreement before. Three years ago it was over the self incrimination provisions of the Fifth Amendment and Jazz had made a similar argument that these protections were intended to protect the “innocent” rather than the “guilty.” I closed out the post in which I responded to this argument like this:
Finally, I’d note that it’s just as important that “guilty” people have the protections of the Fifth Amendment, along with the others that are supposed to restrain the power of the state during the course of a criminal investigation and trial as it is that someone who is “innocent” have those protections. In our criminal justice system, the prosecution and the police walk into court with tremendous advantages over the average criminal defendant. They have more money,they have access to all kinds of expert witnesses, when the police are questioning someone they can lie with impunity in an effort to trick them into making confessions, and through it all they have the imprimatur of the state behind them. The 4th through 8th Amendments exist to protect the individual charged with a crime, who is we should remember innocent until proven guilty beyond a reasonable doubt, from the overwhelming power of the state, and that’s true whether one is “guilty” or “innocent” on some metaphysical level.
So, the answer to the question “who does the Bill of Rights protect?” is, all of us. And that’s exactly how they were designed to work.
This is as true today as it was three years ago. If we start allowing ourselves to think otherwise, then we will have done more damage to the Bill of Rights than the Supreme Court ever could.
Update: Jazz responds further, as does his Hot Air colleague Taylor Millard.
You’re right, he’s wrong, and we obviously do a miserable job of teaching basic American values.
This comes from the same mentality that wants 1st Amendment rights for certain religions only and prisoners don’t deserve a damn thing. The Just World Hypothesis is a harsh mistress when it runs up against the Constitution. It is human nature to want to believe the innocent deserve protection while the guilty get what’s coming to them. We don’t like it when we see those we deem unworthy granted what we feel they don’t deserve or have forfeited somehow.
However, if one truly believes these rights are inherent to American citizenship and humanity, then one cannot in good faith argue they magically go away once someone becomes “the bad guy”. It can be frustrating as hell but it is a necessary part of our system that these rights are fundamental, not situational. The rules and protections are for everyone, not just people we like.
Absolutely correct, Doug. As you note, once you accept innocent until proven guilty, there shouldn’t even be a question.
@michael reynolds:
I daresay, though, that there’s a large segment of the American public who disagrees with me.
So Jazz’s position is that we can determined guilt or innocence before a trial, and use that to determine whether the Constitution applies?
He sounds like the type of guy who would say “Of course he’s guilty. They arrested him, didn’t they?”
Bravo, Doug. Although I give you grief now and then, I salute you for your integrity on this topic. Due Process and the protections of the Fourth Amendment isn’t something that we only allow to people “who look innocent.” The protections are for EVERYBODY.
(I take it that Jazz doesn’t have a legal background, nor a background in history. Heck, half of our Due Process rights are derived from the Inquisition believe it or not….)
@grumpy realist: P.S. This is one reason why I wish Rod Dreher would stop commenting on SCOTUS decisions he doesn’t agree with. It’s like watching a toddler try to comment on General Relativity.
@Doug Mataconis: That doesn’t change the reality that you are right and he, and they, are wrong.
@Doug Mataconis:
I am one of them, to an extent. I understand what you’re saying. Yes the Bill of Rights protects everyone.
Where I have an issue is when it comes to a citizen’s intent. We agree that the 4th and 5th Amendments certainly do protect even those who may be guilty of a crime; and those protections are important. But I think that is just a side effect. The real misconception in our society is the number of people who feel that they have some sort of constitutional right to purposely break the law … as long as they don’t get caught.
You’re the lawyer here, but I’m sorry, you’re going to have a hard time convincing me that the authors of the Constitution ever intended the Bill of Rights to enable people to knowingly and willingly break the law.
By the way, I can be simultaneously appalled by the erosions of our 4th Amendment rights; the recent SCOTUS decision being an example; while still having contempt for those who think they have a right not to get caught.
p.s. I’m driving from Arizona to Texas this weekend, so I will likely have my 4th Amendment rights violated several times at the ridiculous border patrol checkpoints. I have no real objection to telling them that I’m a U.S. citizen when they ask. But the fact that a drug dog is often sniffing my car at the same time does bug me … even though there have never been drugs in my car.
@Todd:
Not sure I know exactly what you’re getting at. People in all societies break the law if they think they won’t get caught. I have a problem with, say, the KY clerk who thought the law didn’t apply to her ’cause she’s so religious. But that’s not an issue of getting caught. Examples please.
@Neil Hudelson:
A lot of people feel they can tell. But they won’t tell us how because for some reason they fear we’ll think them racist.
Off topic, but anyone else having problems with OTB? Slows, won’t scroll, then won’t preview comments? I thought it was a Firefox thing, but I tried Chrome and Explorer and I’m having the same issues. On two Windows machines. iPad seems OK.
@Todd: While I don’t think that they intended the Bill of Rights for that sort of purpose, I do expect that most if not all of them would be willing to acknowledge that some people purposefully breaking the law because of their ability to is an accepted consequence of the Bill of Rights. Some people are going to break the law successfully regardless of what sorts of provisions it has. Some people will be falsely accused of breaking the law regardless of what sorts of provisions it has also. Presented with the case of you being accused (falsely or otherwise) of breaking the law, which system would you prefer to be tried under? We shouldn’t deny for others what we would want for ourselves.
@gVOR08: Yeah. I have the same problem. My computer informs me that the problem is with Adobe and Shockwave, so I assume that it is because Yahoo (my provider) is no longer fully supporting stuff that uses those programs.
Edge is a little better, but it has it’s own problems with perpetual reloading of pages that trandscends OTB, and I crash only a little less on Edge.
Right now, the fourth amendment doesn’t protect the innocent. Thanks to immunity, you can’t actually sue the cops or prosecutors that violate your fourth amendment rights. All you can get is evidence excluded. And if you’re innocent, there is no evidence to exclude, so you have no recourse in response to an illegal search that doesn’t actually find anything.
@Just ‘nutha ig’rant cracker: I don’t get those messages, and I don’t use Yahoo. I use Cincinnati Bell Zoomtown, CB recently got out of the cellular business and may be shorting web maintenance,
@Neil Hudelson: So Jazz’s position is that we can determined guilt or innocence before a trial, and use that to determine whether the Constitution applies?
That’s not that far from the argument about a law that says someone on a “terrorist watch list” and/or the “no-fly list” can’t exercise their 2nd Amendment rights.
@Jenos Idanian:
Very true. And thankfully we have the ACLU to push back against using these watch lists, for which no due process provisions are allowed, from being used to restrict rights.
But somehow I doubt you’re sending off a donation to the ACLU anytime soon.
@Davebo: No, because the ACLU officially has no opinion about the 2nd Amendment, and I vehemently disagree with them over that.
But I do take a smidgen of pride that I am a Bill of Rights militant, even the unpopular ones — like the “freedom of religion” part of the 1st, the 2nd, and the 10th.
@Jenos Idanian: I’m very tired and not interested enough to look it up, but I might be mistaken about the ACLU’s position on the 2nd. It’s either “we have no opinion on it” or “we believe that it refers to a ‘collective’ right, unlike every other citation of ‘the people’ in the Bill of Rights, which obviously refer to individual right.”
Either way, they’re wrong. So screw them.
@Jenos Idanian: OK, it bugged me, so I actually did check it. It’s the latter; the ACLU says that the 2nd Amendment is unique and only refers to a “collective” right, unlike every other reference to “the people,” which is about individual rights.
Without going into an argument about the merits of the 2nd Amendment, I will simply say that they do good work sometimes, but they can do it without my support. They’ve gotten along this far without it, and I doubt they’ll miss it in the future.
@Todd:
The point is that the justice system has to concern itself with process, not just outcomes. That means that everyone who is accused is provided with that process, even if we don’t like them very much or even if they intended to commit their crimes.
@Jenos Idanian:
You’re Google skills are as weak as your logic skills. Color me amazed.
https://www.aclu.org/blog/washington-markup/use-error-prone-and-unfair-watchlists-not-way-regulate-guns-america
@Pch101:
To be clear, I’m not advocating that anybody should be denied their constitutional rights … whether they are “probably guilty” or not. I think it’s a tragedy that the 4th Amendment has been neutered to the point where it’s almost meaningless in some cases.
…. but, that’s mainly because I think we have entirely too many laws.
It is much too easy to unintentionally break the law. Therefore, we need to be protected from a government that if it chooses to dig into any of our lives will almost certainly find something illegal.
In an ideal world though, we would have so few laws that it would be very hard to not know that you are doing something illegal. And with technological advances, at some point it could become extremely likely that if someone knowingly breaks the law, the chances that they will be caught may be very high.
I don’t personally see a problem with that.
… as long as we see a reduction in laws corresponding to technology increasing the likelihood of being caught.
In our current system though, the fact that criminals also benefit from Amendments designed to protect the rights of law abiding citizens shouldn’t be viewed as anything other than a necessary side effect.
In other words, if any of us knowingly commit a crime, but get away with it because it can’t be proven, we should feel lucky, not justified.
I think one of the best areas to debate this concept is traffic laws.
Almost everybody speeds on a fairly regular basis … including me.
But should we be able to?
Let’s say technology gets to the point where all of our roads can be fitted with sensors that can accurately detect vehicle speeds, and maybe cameras paired with computer algorithms that can determine reckless driving (such as weaving in and out of city rush hour traffic) …
If citizens automatically get tickets every single time they break a traffic law, it’s likely that a lot of people may be pretty outraged.
But what would be the solution to that outrage?
Should we outlaw the sensors, so that it’s easier for people to continue speeding without getting caught?
Or should we look at the motivation behind having speed limits in the first place? … then possibly make adjustments if needed.
Perhaps the issue is so microscopic and fundamental as not teaching an effective meaning of presume; true absent contrary evidence.
As the electorate has vastly abandoned formal learning of logic and jurisprudence, James Franklin’s The Science of Conjecture: Evidence and Probability Before Pascal (3rd JHU 2015) might remind of rhetoric that was logic before the calculus.
@Davebo: Gee, unfounded snark. How surprising.
I said that I disagree with the ACLU about their stance towards the 2nd Amendment, and included a link to back it up. Your link says that they don’t like these “watch lists” and “no-fly lists,” and includes a reference to the 2nd Amendment. I’m not seeing a contradiction, but if there is one, then it’s between their official policy (as I linked to) and their recent statement (which you linked to).
So how is that some flaw of mine?
Regardless, I’m still not swayed to change my distaste for the ACLU.
@Todd: Or rolling through stop signs. (The Brits are better about this–they have yield signs instead.)
Part of the speed limit stuff was put into place way back when OPEC caused the original gas crisis (remember that?) and the federal consensus was to try to force people to drive at the most energy-efficient speed–which is where we got all those 55 mph signs.
Where we really need lower speed limits enforced is when you’ve just come off a highway into a suburban or urban area, because it takes some time to get used to speed differences and your “oh, but I’m going slowly!” may still be 40 mph, which packs quite a whack if you run into something or someone. One of the roads near my house has a “this is your speed” sign which is quite useful.
@Todd: The precedent is red light cameras. I’ve got no problem with them because I’m tired of watching three more cars cross in front of me after my light turned green. Long ago I was taught in driver’s ed that there was an unwritten rule that two cars could make a left on yellow. Now you can’t for oncoming cars running the red. However, most people hate red light cameras and have gotten them removed in many places or halted installation.
It’s a pet peeve of mine that speeding is pretty much the only traffic law we actively enforce, ignoring things like improper lane changes and right on red without a stop. Why? Because the cops are lazy and speeding is the only offense for which they have an electric box that gives them admissible evidence.
Also, fergawdsake everybody, learn to MERGE onto a freeway.
It would be better to have some form of traffic control that didn’t generate so much profit for private companies…
@An Interested Party:
Yep, that’s the real problem with red light cameras in many cities. They were voted out of my small city a couple of years ago. I didn’t have any sort of “privacy” issue with the fact that they were there … in fact like gVOR08 I appreciate people who run red lights getting caught.
However, our city’s contract was one of those where the company got paid by keeping a certain (rather large) percentage of each ticket that was sent out. Perverse incentives being what they are, of course there were accusations that the yellow lights suddenly seemed a lot shorter than they used to be. The vote to get rid of the cameras was pretty lopsided.
This problem could be solved if the model was changed. Have the city pay the company a flat fee each year, rather than per ticket. People who get caught would still complain, but they’d have a little less sympathetic of a case. 🙂
@An Interested Party: That’s a function of the shitty deals most cities set up, not a camera problem per se. But that’s the sort of thing that happens when we have a manta of privatization and cash strapped cities.
@Todd:
If a perfect speeding detection system were possible, it would never be implemented. Speeding tickets are not actually about preventing speeding, they’re about revenue.
As long as your chances of being caught are low, most people are willing to risk getting caught. So the government can go out and randomly take money from a small percentage of them each day.
If the detection rate were near 100 percent, people would actually stop speeding and the revenue stream would dry up. This is why jurisdictions that install red light cameras don’t also install speeding cameras.
@gVOR08:
Studies have shown that red light cameras trade a small decrease in head on collisions for a huge increase in rear end collisions at controlled intersections. They’ve also shown that increasing the length of the yellow light is far more effective at reducing red light violations than the cameras are (especially since the companies the run the cameras often reduce the yellow light to increase the number of people that get caught).
While they’re sold as a safety measure, red light cameras are really about revenue.
@Stormy Dragon:
That is a whole nother can of worms in and of itself.
Personally, I think think that cities shouldn’t be allowed to include projected revenue from fines and tickets in their budget plans. But I know that will never happen. Citizens don’t actually want to pay for things like police and courts with their taxes.
@Todd:
I have a similar feeling. My thought was the legal fines out to go into a fund and each year would be divided among the citizens of the jurisdiction at the end of the year. e.g. if a town takes in $100,000 in fines and has 1,000 legal residents, each person would get a $100 for that year.
Possibly implement it as a refundable tax credit to make it easier to administer.
@gVOR08:
This. I am sick up to here [insert gesture] with people turning right from the left lane, going straight from the turn-only lane, driving while texting, eating, and smoking simultaneously, etc. (And you kids get off my lawn!)
The free market may actually be starting to address this. Progressive Insurance offers the option to install a monitoring gadget in your car that transmits driver behavior data to them. If you really are a ‘safe’ driver (by whatever metrics they currently use), you get a lower rate.
Now, if we could
(1) improve the technology so that it’s really measuring the behaviors that matter,
(2) make it mandatory on all public roads, and
(3) watch the rates for BMW drivers soar…
@Todd:
Such technology already exists. We use it in school zones in Longview, WA. Where the citizens had their objection to the technology was when the city declined to reveal at what point the infraction was calibrated to trigger.
I got caught at all 4 school zones in Longview on a single day. My speed was listed at 25 mph in a 20 mph zone. Beautiful pictures of both the care and the license plate. Not a bad penalty either. Even though there were 4 violations, I only had to pay the fine once.
@grumpy realist:The Pickle parkway in Texas has a speed limit up to 90 MPH for long distances. Seems to work quite well with very few accidents.
@Just ‘nutha ig’rant cracker: We’ve had quite a few of those “you are going this speed” signs around here and consistently they show my speed as being 3 mph slower than my speedo at 30 mph. At 60 I’m actually going 54 or so. I’ve replaced the VSS and more in an attempt to get the speedo closer but no joy. A slight change in tire size could easily cause an already off speed to be +5 mph slower than actual speed. I’m quite conflicted on the school zones in your area. You have no idea you’re going too fast till you start getting tickets in the mail which could be devastating to a low income family. I can’t help but think that some of those “you are going this speed” signs would be more effective at speed control. The ones around here have blue/red flashing lights for speeds above the posted limit which gave me quite the start the first time I saw it.
@Matt:
I imagine this could be a potentially small problem. But I’m sorry, the majority of people who speed in school zones know exactly what they’re doing … they just think the limit doesn’t apply to them … because you know, they’ve got a busy lives and are in a hurry.
There was 15mph zone near the middle school by our house when we lived on Fort Hood in Texas. Several times my wife was going exactly the speed limit, only to have people slam on the brakes behind her, honking their horn and flipping her off.
… and don’t even get me started with how badly people ignore 25mph speed limits in many residential neighborhoods. It’s almost to the point that it’s scary as hell to let your kids play outside … even if they know to stay out of the road.
So these suspects were still guilt?
@DrDaveT: The people I hate with the passion of a million white-hot burning suns are those who text while driving.
@Todd: If you gave me a few more hints I could probably guess which middle school you’re talking about. My mom lives near fort Hood and she was there treating some of the wounded after the shooting. The big issue I see down here is that there are schools zones EVERYWHERE. There’s not even a school within 4 blocks of some of the zones in Corpus. Much like the boy that cried wolf I think people just don’t take the school zones seriously. For the record I do take them seriously.
When I was around 5 or so I lived on a street that had a 40 MPH speed limit (most went +50 cause it was a busy rural route) and I never had an issue as a kid nor did my sister or our cousins when they visited. Our mom made it a point that the street wasn’t a playground and we stayed away from it. My cousins were never one to listen but even they got the point very quickly. I had to cross that street multiple times every week for t-ball related stuff. No stop signs no crosswalk etc and I never once had a close call. Meanwhile down here they seem intent on not teaching kids how to cross a street properly. School zones where there isn’t a single school. Crossing guards for junior high and high school students. I’ve straight up had people just walk out in front of my car in the middle of the road AT NIGHT. I almost hit a dude earlier tonight because I didn’t see him (dark clothes and no street light nearby) and he was just crossing the street nowhere near a crosswalk. I wasn’t even speeding. I’ve had people walk in front of me at an intersection when I had the green light and they had the NO WALK blinking at them. I just don’t get why people are so stupid about it down here. In Illinois I never really saw this. It’s also a huge pet peeve of mine as I can walk around town fine without inconveniencing other people at every crosswalk.