Search and Seizure, etc.
- posted by Jim Leitzel @ 10:01 AM

Pete Guither at Drug WarRant has up a couple of posts that point to developments that I would find depressing -- at least if it weren't for the fact that Pete and others on the sidebar are presenting the case against the prohibitionists so well. The first concerns a Utah case on whether the police, without a warrant, can swipe your doorknob with a cloth and then analyze the cloth for traces of drugs. The idea is that if traces are detected, the police could then use that "evidence" to support the probable cause necessary to obtain a warrant to search the house. Pete's analysis: "I lean to the notion that either the doorknob is private, in which case a warrant is needed to test it, or it's public, in which case there's no way to know who touched it and a positive test is not justification to search the house."

But mainly I want to second the final thought in Pete's post, namely, how did it come to such a pass, that many American citizens apparently approve of such methods? First we learned in a drug case that police can search our trash without a warrant, even though the personal nature of our trash hardly needs explicating -- though for an explication, one could start with Justice Brennan's dissent in the trash case: "Scrutiny of another's trash is contrary to commonly accepted notions of civilized behavior." And later, from the same dissent: "A single bag of trash testifies eloquently to the eating, reading, and recreational habits of the person who produced it. A search of trash, like a search of the bedroom, can relate intimate details about sexual practices, health, and personal hygiene. Like riffling through desk drawers or intercepting phone calls, rummaging through trash can divulge the target's financial and professional status, political affiliations and inclinations, private thoughts, personal relationships, and romantic interests." And now they want to scrutinize our doorknobs -- perhaps they are mad that they can't check out our interior temperatures. Anyway, I am rambling, but the problem here is the same old problem, that once you define some substance as evil, then almost any measure to combat it, no matter how tyrannous, seems to make sense, as long as it offers the remotest chance of decreasing the availability of the evil substance. So you will be willing to go through people's trash, scrape particles off their doorknobs, shoot down small planes, and of course, lock folks up for walking around with a little bit of the evil substance, even if they only intend to consume it themselves. As Clarence Darrow said (talking about an earlier prohibition), "The tyrant believes that if the laws do not fit the people then the people must be bent to fit the laws and forced to obey."

Pete's second post concerns a DEA exhibit that is breathtaking in its wrongheadedness.

Labels: Drug WarRant, search, Supreme Court