Who Needs Search Warrants? Just Follow Your Nose!
by C.J. Maloney
by CJ Maloney
by CJ Maloney: The
Desperation of King Henry VIII
and you can’t come in,
Keep knockin’ and you can’t come in,
I guess you better let me be.
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
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
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.
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.
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.
B. & Lerner, Ralph. The
Founders’ Constitution, Vol #5. (Liberty Fund, Inc. Indianapolis,
[send him mail] lives and
works in New York City. He blogs
for Liberty & Power on the History News Network website and
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
© 2011 by LewRockwell.com. Permission to reprint in whole or in
part is gladly granted, provided full credit is given.
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