“The Spirit of democracy is not a mechanical thing to be adjusted by abolition of forms. It requires change of heart.” – Mahatma Gandhi
Oh, the good Old Fourth. I’m not talking about the Fourth of July either; it’s currently Memorial Day Weekend, but the Fourth Amendment rather. If there is anything in the Bill of Rights to our U.S. Constitution that every cop is affected by on a daily basis, literally, it’s the “4th” and everything that goes along with it. Traffic stops, probable cause, warrantless search requirements, Carroll, Chimel, Belton, Ross, Gantz, Jones, etc. Arrests with and without warrants, affiants, search warrants, seizure inventories and the like. For the sake of brevity lets limit searches of homes, persons, properties and affects to non-all inclusive topics. You get my point. It’s a daily occurrence.
As law enforcement officers we have to overcome certain hurdles due to the protections offered to everyone as a result of the 4th Amendment, but does the law ever really change? We know that the U.S. Supreme Court interprets the Constitution as applied to federal issues that rise to a constitutional level, and every time a cop puts their hands on someone or looks through their stuff we meet that level, but do the Justices (only 112 over the last 221 years – those federal benefits must be good) ever really change their view on previous Amendment views? I mean how could the Founding Fathers ever have conceived of a car, airplanes, Space Shuttle, Former Vice President Al Gore as founder of the Intranet, or Assault Rifles for example? I once read where current Associate Justice Stephen Breyer said that The Court, known here as SCOTUS, often considers the pulse of America when addressing huge issues thought to affect millions. In other words, there seems to be some humanistic influence to their decision making process and not every decision is based strictly on an abstract matter of law with intricacies few understand. My brother-in-law (Prosecutor for the City of Broadview Heights, Ohio, and Law Director for Seven Hills, Ohio) has said that, “Attorneys are known for practicing law, because we are never thought of as being good enough to just do it.”
So, with that in mind, can we draw some conclusions, maybe even trends forthcoming, if we briefly review case law history over the last two centuries involving over one hundred justices? Let’s see.
Honestly prior to 1886 the U.S. Court System simply wasn’t mature enough in terms of its structure and handling of cases to deal with a head-on 4th Amendment question. During that time period a policeman (not sexist here, but no patrol women in law enforcement then) might whack a rogue over the head with his nightstick putting him out, and rifle through his pockets to take what he found and then drag the drunkard back to the station or take him home to recover. Upon review of Boyd v. United States, 116 U.S. 616 (1886) the Court took what appears to be a significant step in applying the protections of the 4th Amendment when it first determined that search and seizure was unreasonable when the government required a man to produce private papers. Not having any American legal experience to draw on to sustain their interpretation, the justices relied on English Common Law in Entick v. Carrington (1765) where English Citizens were protected against abuses of executive power. Notice that nearly a century after The Declaration of Independence our legal umbilical cord had not been completely severed from Mother England when it came to addressing issues of how a government should interact with its citizens.
Horses to Horsepower