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| As Crime Ebbs, Top Court's Privacy Rulings Flow |
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Posted by FoM on June 16, 2001 at 19:12:25 PT By Linda Greenhouse Source: New York Times 
In the clash at the Supreme Court last week between old-fashioned personal privacy and newfangled law enforcement technology, few people predicted privacy would be the clear-cut winner. But it turned out that way when the court ruled that the police need a warrant to aim a thermal imaging device at the outside of a house to look for patterns of heat that could suggest indoor marijuana cultivation.The ruling is the latest of several decisions suggesting that this famously law-and-order court has begun to display a new skepticism toward the arguments that police and prosecutors bring before it. And the unanticipated shift is creating unusual alliances and unpredictable outcomes. The reasons for the subtle but perceptible shift are not immediately obvious, given that there have been no personnel changes on the court since 1994. But if the court's roster has not changed, the country has; with violent crime at its lowest rate in 30 years, the national conversation about crime is finding a new focus. It is almost as if the public, liberated from the burdensome presence of crime, is free to express doubts about the civic costs of a whole range of crime-fighting strategies, from racial profiling to high-tech eavesdropping to low- tech drug-sniffing dogs. Even capital punishment is subject to greater debate now than at any time since the mid-1970's. "The country is nervous about privacy, about the discretion the police exercise and the lengths to which they go," Barry Friedman, a law professor at New York University who is studying the relationship between the Supreme Court's behavior and public opinion, said in an interview last week. "It's become a high-profile issue. Public opinion doesn't escape the justices, and the court itself is starting to get squeamish. On such a closely divided court, it doesn't take much to turn them." Indeed, last week's vote, in Kyllo v. United States, was 5 to 4. But it was not the usual 5-to-4, conservative- liberal split. Justice Antonin Scalia wrote the majority opinion in a case that conformed neatly to his view that the Constitution should be interpreted according to the intent of its framers; modern technology that enables the police to gain knowledge that once would have necessitated a physical entry into a private home, he said, requires a warrant. Not to make that leap across time, Justice Scalia said, "would leave the homeowner at the mercy of advancing technology." Other cases this term also demonstrate the court's new concerns. Defendants won two other cases that involved the Fourth Amendment's prohibition on unreasonable searches and seizures. In a case from Indianapolis, the justices ruled that police roadblocks where trained dogs sniffed stopped cars to detect drugs were unconstitutional. In a case from Charleston, S.C., the court ruled that hospital workers could not test maternity patients for illegal drug use without their consent and then turn over evidence of drug use to the police. Prosecutors in both invoked the "special needs" doctrine the court developed in the 1990's to uphold government drug testing programs to argue that fighting the war on drugs justifies dispensing with the amendment's usual requirements. But the court, in two 6-to-3 decisions, instead served notice that it was the doctrine, not the amendment, that had limits. Because law enforcement "always serves some broader social purpose or objective," Justice John Paul Stevens said for the majority in the Charleston case, a worthy goal was not a license to circumvent the need for a warrant or at least suspicion of individual wrongdoing. The exception this term was the Texas seat belt case, in which the court ruled that the police had discretion to make a full custodial arrest for a minor traffic offense, like not wearing a seat belt. The surprise in this 5-to-4 decision was less the outcome than the lineup, with Justice David H. Souter deserting his usual allies to write the majority opinion and Justice Sandra Day O'Connor warning in dissent that the decision carried "a grave potential for abuse." One defense-oriented Fourth Amendment expert, Professor Tracey Maclin of Boston University Law School, said the seat belt case was a serious loss that outweighed the victories for defendants in the other cases because once the police make an arrest, they can conduct extensive searches. "What it means is that for the minorities and the longhairs of the world, it's business as usual from this court," he said. The path through the tangled vines of Fourth Amendment doctrine has never been straight or smooth. In three important Fourth Amendment cases last term, the court gave similarly mixed messages. On the one hand, it ruled that police officers conducted an unconstitutional search when they walked down the aisle of a long-distance bus and squeezed passengers' overhead luggage to feel for drugs. Chief Justice William H. Rehnquist wrote that 7-to-2 majority opinion. The court also ruled — unanimously — that an anonymous tip that a person was carrying a gun was not, by itself, sufficient to justify a stop-and-frisk search. On the other hand, the court ruled that fleeing at the mere sight of a police officer could be conduct suspicious enough to justify a stop-and-frisk. The court was unanimous on that general rule, too, though it divided 5 to 4 on its application to the particular case. "It's refreshing that the court is not quite predictable these days," said another Fourth Amendment expert, Prof. James J. Tomkovicz of the University of Iowa Law School, who filed a brief for the defendant in the thermal imaging case. "Everyone is taking these cases one at a time, trying to do what they think is right." Among the recent cases, a consistent theme is a new sensitivity to what Professor Tomkovicz called the "threshold" question. What is a search? When does the Fourth Amendment begin to operate? But more important than the details of any one case, he said, is the court's message, both to the lower courts and to law enforcement officials, "that there are constraints, that the Constitution is alive and well." Source: New York Times (NY) Related Articles: Court Limits Police's High-Tech Search of Homes Court Rules on Heat-Sensor Searches Supreme Court Rules Thermal Imaging Is a Search Home Comment Email Register Recent Comments Help |
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| Comment #2 posted by dddd on June 17, 2001 at 00:26:52 PT |
| ..I agree with GreenFox.... ..The rulings the court has made recently ">The reasons for the subtle but perceptible shift are not immediately obvious, given that there have been no personnel changes on the court since 1994. But if the court's roster has not changed, the country has; with violent crime at its...blah.. blah"< It is a cheap but purposely "perceptable shift",in an
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| Comment #1 posted by greenfox on June 16, 2001 at 19:38:37 PT |
But more important than the details of any one case, he said, is the court's message, both to the lower courts and to law enforcement officials,
Oh really? I tend to disagree. I will tell you why. Police can search through your trash, find illegal things, and use them against you in court. If the founders knew that our "nation's finest" were engaged in such ROUTINE activities, they would quite literally roll over in their graves. sig,fik, [ Post Comment ] |
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