The death of the Fourth Amendment

Dear Readers, The Fourth Amendment is one of our fundamental legal principles that protects us against a tyrannical government.  A reaction against offences committed by the British Empire, it states, in part, “The right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause …”

Violations are subject to civil rights lawsuits or may result in evidence being excluded in a criminal case.  Unauthorized seizures, as with the unconscionable murder of Breonna Taylor, result in millions of dollars of inadequate family restitution.  Police acquiring evidence without a search warrant (or based on false testimony) run the risk of having their case crumble when evidence is excluded from trial.

Coloring between the legal lines, the police can initiate an encounter based on something called “articulable suspicion.”  This is our lowest evidentiary standard.  It means just some fact justifying police activity and the standard for how police can approach you.  That is all that it does, e.g., justify briefly stopping someone for basic questioning.

After this encounter starts, a heightened factual incident may be revealed as “probable cause.”  This does not mean evidence of guilt; it is just solid evidence suggesting a crime occurred.  The police now have the right to detain someone or search (this might be a limited one) a vehicle or possibly a house (although that usually requires a search warrant).

An example of this is the search at Mar-A-Lago.  The FBI believed it had enough evidence of classified information in the illegal custody of President Trump.  It informally asked him to give the data back.  It believed he was not completely compliant with its request, so it went to a judge for a search warrant and executed it to recover some of the classified documents sought.  This is how the legal process is supposed to work for everyone.

A tenet of the 4^th Amendment is that racial bias or profiling has no basis in policing.  This means you cannot conduct a traffic stop just based on ethnicity, gender, or race.  In an extreme case, you cannot stop every Hispanic driver just because they are Hispanic.  

There is even an equal protection right that you cannot stop a driver for a traffic violation based on their darker skin color, where you do not also do so for people of lighter skin color.  In other words, you cannot selectively enforce the law based on bias or prejudice.

Bias is hard to prove.  The fact that a larger percentage of those with darker skin color are stopped and ticketed does not necessarily prove anything; it could be just an innocent coincidence.  Still, it does exist and is why we have a “Black Lives Matter Movement” and why Derek Chauvin was convicted of murdering George Floyd in federal court.

President Trump’s policy of rounding up the undocumented immigrants in this country exposes our weakness in racial bias in policing.  It is one thing to detain someone known to have violated their immigration status; this is clearly probable cause to detain someone and clearly permissible under the 4^th Amendment.  However, ICE should not be permitted to round up people in a dragnet because of their surname, whether they speak a foreign language, or appear to have a specific ethnicity.  

This seemed to be a consistent and commonly held belief in the legal community.  Until it wasn’t, thanks to a “secret docket” United States Supreme Court decision to remove a District Court injunction preventing ICE from doing just this.

In its zeal to find immigration violations in Los Angeles, ICE was raiding Hispanic communities, detaining Hispanic people (and citizens) for being Hispanic, and determining later if there was a legitimate legal reason to do so.  A Federal Judge put a stop to this.

The Supreme Court has lifted this injunction without providing a full briefing or holding oral arguments.  Maybe this does not signal a chilling change in 4^th Amendment jurisprudence, but it is still Orwellian.  Justice Brett Kavanaugh, writing for the majority, muses that certainly ICE will act with appropriate discretion to carry out legitimate immigration policy.  Justice Sotomayor wrote a stinging dissent basically emoting, “How naive you are.”

The end result is that if you are of Hispanic descent (appearance or Spanish-speaking) in Los Angeles, you live in fear of being rounded up in certain communities.  You need to carry a valid passport or green card on your person to prove your citizenship when running simple errands.  This is un-American.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.