Fourth Amendment

Most analysis see a tension, not to say a contradiction between the fourth amendment’s emphasis on privacy and against warrantless searches, on the one hand, and putting criminals in jail where they richly belong. For example, a policeman invades a murderer’s house, finds evidence of serious wrong-doing, but the criminal evades jail, due to the error of the cop. The “fruit of the poisoned tree,” and all that.  But this is not a necessary result. We can, instead, have our cake and eat it too. Why should the criminal be set free? We’ve got him dead to rights. The forces of law and order have enough evidence, and more, to clearly convict him. Why, not, instead, penalize the cop for breaking the law, and send off the miscreant to a richly deserved, and long, sentence in prison? After all, it was the policeman who erred. When people make mistakes, it is they, not anyone else, who should bear the brunt of the error. You say that constables, under such a system, would be less likely to trespass on people’s fourth amendment rights? Well, if so, we are no worse off than under the present disposition, since the felon will already walk free when his fourth amendment rights are trampled upon.

Yes, this is indeed less likely, but how much less likely will it be depends to a great extent on the severity of the punishment. It seems that in retrospect this policeman is guilty of no more than a trespass upon the property of a very guilty party. He should get no more than a slap on the wrist for his property rights violation, if that much. On the other hand, if he finds no evidence of wrongdoing as a result of his unwarranted (literally and figuratively) search, then the penalty will have to be more severe. But policemen, at least those who are interested in solving crimes with victims, as opposed to victimless crimes, and protecting people against such outrages, can be supposed to be highly motivated to engage in warrantless searches of the property of those he confidently predicts are guilty.

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5:57 pm on July 15, 2019