by Matt Barr

The right of the people to be secure in their houses

Hudson v. Michigan presents an opporunity for the Supreme Court to step back and look at an issue it too often considers only incrementally. When you consider the sanctity of a person's home incrementally, you get rules that seem to make sense if you connect the dots but are outrageous if you try to draw a line directly from the first dot to the last.

Take Kelo v. New London. The government may only take your property by eminent domain for a public purpose. So we, the government, are ok if we need to build a bypass or water tower? Right. How about removing "blight," you know, cleaning up a crime-infested, run-down neighborhood? Well... ok, I guess. Well it's a tiny step from there to being able to take property and give it to someone else if we think they'll put it to better use, right? Well... So, the Fifth Amendment lets us take your property and give it to your neighbor. That's not a public use! You could have spoken up sooner, but now you're stuck! Crap. Or, as Justice Thomas put it more eloquently, "the Court has erased the Public Use Clause from our Constitution."

Only five out of nine Justices thought they were stuck drawing a line to the dot representing Kelo, so hope isn't lost that someone will back up the truck and read the Fourth Amendment before deciding Hudson. Here's what it says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So we, the government, can't search your home without a warrant, issued by a theoretically neutral magistrate, sworn out under oath, and describing what we want to do in detail, which we must stick to. Exactly.

We can just bust through the door, though, as long as we have all that stuff? No! That's an unreasonable search! Secure in their houses!

Fine, fine, clip the string, Chatty Cathy. Suppose the police -- reasonably -- think if they say "open up, it's the police," they'll get shot to death? I see what you mean. Ok, in that case, do what you need to do.

Great. Now, say we reasonably believe someone could destroy the evidence we're looking for if we knock and give them time to do it? That does sort of defeat the purpose...

Darn tootin'! You know, we're not talking about an engine block or meth lab equipment, we're talking about, say, computer files, or drugs. Right. Ok. I think.

So if we're after something that can be flushed down the toilet, and the house has indoor plumbing, we can dispense with the knocking and announcing. You... wait. What?

And of course, we can't play Monday morning quarterback... the police themselves are entitled to deference in their determination of whether cricumstances justify their actions. I suppose it's not fair for us to second guess...

No indeed. And now we come to Hudson. Even if the police bust down the door, allegedly in violation of the Supreme Court's Fourth Amendment jurisprudence, we shouldn't exclude the evidence they found there from trial if they would have discovered the evidence anyway if they'd waited patiently for the owner of the house to open up. But wait! If they would have gotten the evidence if they'd played by the rules, then what were these "exigent circumstances" that they say allowed them to break the rules?

Let's not get hasty. Deference! Police safety! One of the officers who raided the Hudson residence had been shot at before! Hold on. Before you said that they should be able to break down the door if they thought the person on the other side would shoot them. Now you're saying they can bust down the door if they've been shot at by someone else before?

How would you feel? I'd probably have moved on to another career, because I'm cowardly, so I'm not a good person to ask. Anyway, police safety? We're talking about whether evidence could have been destroyed, I thought.

That too! Deference!

You're saying that this rule we've somehow come up with that says the police can bust down your door if they give you long enough to answer a knock can be broken at will, without a threat of immediate harm, and admittedly no suspicion the evidence would have been destroyed before your perp opened the door... and that's fine? There are no sanctions available if the police act improperly?

Are you pro-criminal, or something?

Look, pal. As long as there's a body count of innocent people who have been victims of raids on the wrong house, it's not a matter of the degree to which you support law enforcement.

We don't need to connect every dot we're asked to. If we have a provision of the Bill of Fricking Rights which says our home is our castle and the police can't act unreasonably, then they can't break down the door and take you and your evidence by force without an alarmingly good reason. You don't like that, propose an amendment repealing it. But I would argue it does far more good than harm, even setting aside one's feelings about the efficacy of the war on drugs. Provided we take it at least semi-seriously.

That's the question before the Court in Hudson: Do you take the Fourth Amendment semi-seriously? It would, as far as the Court's conception of the sanctity of your home is concerned, be a step in the right direction.

Browse books from Amazon.com:
Fourth+Amendment constitution