Stand up for the 4th Amendment

February 10, 2012

The arrest of Guadalupe County Judge Mike Wiggins sounds the siren on an issue I am constantly advising people to pay attention about.  According to news reports, Judge Wiggins was arrested after police came to his hotel room after receiving a complaint from a hotel employee that he smelled the odor of marijuana coming from the area around the judge's room.  When the police arrived, they did a "protective sweep", and then asked the judge whether he had any marijuana.  They judge granted consent to the police to search a duffel bag where they found the marijuana and some paraphernalia.  The judge was then arrested and was required to post a $3,000 bond.

The Fourth Amendment of the United States Constitution forbids the government from unreasonably searching your house, person, or belongings.  Consent searches, however, do not fall under the scope of the 4th Amendment.  A consent search is outside of the 4th Amendment because it does not require the police to have probable cause or even a reasonable suspicion to conduct the search. 

I'm not sure about the validity of the "protective sweep" conducted on the judge's room.  That is a very fact dependent area of law, and it may or may not have been constitutionally valid.  Generally, however, your hotel room gives you very nearly the same rights you would have in your own home, and police are not usually allowed to enter your home to do a protective sweep.  If I were defending the judge in this case, this would, I suspect, be among the first arguments I would raise in his defense.

Unfortunately for the judge, however, his consent to the police to search his belongings may have cured the constitutional deficiency of the police performing the protective sweep since they did not see or search for the marijuana until he gave them permission to do so. 

The 4th Amendment was crafted to overcome Writs of Assistance.  A writ of assistance in colonial days were a way that government officials were able to walk into anyones home at any time of the day or night and search whomever and whatever they chose to search.  These writs did not require probable cause, and were generally issued to allow British authorities to conduct scavenger hunt searches of houses and belongings of people who spoke out against British rule.

The framers of the 4th Amendment wanted to ensure that the new government created after the Revolutionary War would never turn into what so many men and women laid down their lives to overthrow.  They wanted to protect all citizens from having their privacy invaded on the whim of government agents who acted out of authority simply because they possessed authority.

It is not only dishonorable to the memories of the men and women who died to give us our freedoms, but to the countless men and women who sacrificed all they had to construct a system of governance that would forever protect us from the tyranny they had just overthrown, when we throw their carefully crafted protections at the feet of big government.

The 4th Amendment was not a thrown together anti-government article.  It was, and remains today, an article to protect us from a society where government agents can act on whim to deprive us of our privacy and property.  If you are confronted by a government agent who asks for permission to search you, your house, or your belongings remember that there is a system in place for that agent to get a warrant to search if he has probable cause.  If he does not have probable cause the warrant application should be denied, and your privacy should be protected by the blood, sweat, and tears of our forefathers.  All you have to do is say "no," and nothing else.  If they show up later with a warrant then let them do their job.  If they don't come back with a warrant then rest assured you have just stood up for the principles that founded our great nation.