Keep knockin' and you can't come in, Keep knockin' and you can't come in, I guess you better let me be. ~ Perry Bradford
Riding the commuter trains of my area is a study in how people react to being mildly uncomfortable for any length of time. Being designed to seat people of a body type far slimmer than what my line usually encounters makes riding to work with a seatmate's bulging oversized body squeezing you into the wall, arm rest or the bulging girth seated on your other side almost a given. Lucky for me, I learned how to properly fold and read The New York Times even when hemmed into a packed subway car so handling the task while immobilized between two people who could stand to lose a few stone each is not beyond my ability.
So that's how I was able to read Justices Look Again At How Police May Search Homes on a recent ride home. Apparently, the brave warriors who fight our War on Drugs have found getting search warrants too much of a hassle, and lawyers for the Obama administration and the state of Kentucky are before the Supreme Court arguing they must be able to forcibly enter any home should they simply "smell something funny" and "hear strange noises" from the other side of a door. I'd gasp in horror at their brazenness, but I can barely breathe due to the 300 pounds of American on each side of me. Every time the mountain to my left turns a page of the magazine she's reading I feel a rib crack.
I'm getting squeezed, too, from the other side, and I keep a wary eye on the man. He's balancing a slice of pizza, a can of diet cola and the sports page on top of his stomach. I worry about his ability to juggle it all, but at least I have my iPod on so I don't need to hear him slurp and chew for the next hour, though I can still hear a young girl, ten rows up, talk into her cell phone. So I turn up the volume and thank God for His blessings, like having the ability to drown out the world about you. It's the little things that count. I go back to reading.
The reporter tells me that some police officers down in Kentucky were wandering the hallways of an apartment building (searching for a suspect who had sold drugs to one of their informants) and broke down an apartment door from which they claim to have smelled marijuana and heard noises that "made them fear evidence was being destroyed." So without any warrant at all they kicked in a door and arrested a completely different man than the one they were searching for as the poor sap they grabbed, by chance, had marijuana and cocaine in his apartment. No surprise, the Kentucky Supreme Court suppressed the evidence. Even less of a surprise, federal and Kentucky political authorities went apoplectic with that decision.
They argue that we're in a war, a War on Drugs, and necessity and speed make search warrants too cumbersome for that war to be won. Police on the scene must, they say, have discretion to enter our homes as determined by them, on the spot. This ruse has been tried (and denied) before, back in 1948, when the Supreme Court found "the smell of drugs could provide probable cause for a warrant…but it did not entitle the police to enter without one." The Fourth Amendment to our Constitution is blunt on the matter — no home may be entered but with a warrant, specifically pointing to what is to be searched and seized. We also have ample historical evidence and sad knowledge of humanity's flawed state; both argue irrefutably for the use of search warrants to restrain abuse of power.
The power to conduct warrant-less searches that the Obama administration and the state of Kentucky are demanding is simply too dangerous to ever be granted, whatever the excuse. Couple such a power with your average American police department's drug enforcement unit, most of whom enjoy pimping out as if they're off fighting in Afghanistan rather than placid, domesticated America, and you'll never get it back.
So what is to be done should the Supreme Court allow the Constitution to live and breathe and grow until search warrants are declared passé? Quincy's Report concerning "writs of assistance" in Massachusetts just before our Revolution declared, "written constitutions, established by the people themselves, and beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Constitution as the fundamental law and disregard the statute." (Kurland & Lerner, 228) There we have our marching orders, regardless of what the Supreme Court decides.
If you are a police officer, it is your sworn duty to refuse to enter any home without a legally issued warrant describing the place and person to be searched, even if you smell ganja and hear people singing along to Bob Marley from behind the closed door. If you are jury on a case with evidence obtained by an officer following his nose rather than the law, you must acquit or refuse to indict. And if you are a judge sitting high on your bench, you must throw out any guilty verdict derived from evidence seized without a warrant. If there ever is to be a practice crying out for nullification, warrant-less searches are it.
No War on Anything, let along drugs, is worth given up the security of our homes for. Either absolutely everyone has a right — even the stoners amongst us — or absolutely no one does. If heavily armed police snooping outside our doors (how long until they introduce the sniffing dogs?) breaking in as their nose and ears tell them is proper, if that's the road to "victory" in this War on Drugs, I vote we reconsider the whole thing.
Being a natural pessimist, I'm certain America will soon enough have police who substitute their nose for search warrants and the democratic mob, pacified by declarations we're now that much closer to winning the War on Drugs, will sink back into the couch. That's sad and it bothers me, but I may as well rail against the wind — or push back against the mounds of fat encasing me on each side.
Which I now need to do, this is my stop.
Kurland, Philip B. & Lerner, Ralph. The Founders' Constitution, Vol #5. (Liberty Fund, Inc. Indianapolis, IN, 1987)
CJ Maloney [send him mail] lives and works in New York City. He blogs for Liberty & Power on the History News Network website and the DailyKos. His first book Back to the Land (Arthurdale, FDR's New Deal, and the Costs of Economic Planning) is to be released by John Wiley and Sons in March 2011.