The Fourth Amendment to the US Constitution; Consent, Or Not, Or Change Your Mind Midstream


THE FOURTH AMENDMENT

I must say, by God these are extraordinary times.

Times which demand a new hard look in many directions. For one thing, I know my country’s Constitution peripherally.  I am its admirer, but I am not its student.

When Constitutional bits come up variously for examination I learn, then often forget, the content.

Following the Muslim-inclined scumbag terrorist bastard bombers from Chehnya and their dirty work in Boston, the Fourth Amendment is being scrutinized anew.

Why?

Because the entire population of a large American city was in minutes under martial law, by unknown authority, in stunning total lockdown. Flooding the airwaves…pictures and reports of more armed troops and law enforcement and the sophisticated machinery of war came out of nowhere and filled New England’s terrain in a way never before seen in any state of this nation.

Moreover, for some sensible and some alarming reasons in this historic revolutionary hotbed of yore, subjected to house to house searches on Patriot’s Day, there was not one single citizen who said I refuse.

4th Amendment:     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. (The Fourth Amendment to the US Constitution).

Which has this fascinating historic sidebar:

In mid-January 1761, a group of over 50 merchants represented by James Otis, petitioned the court to have hearings on the issue. During the five-hour hearing on February 23, 1761, Otis vehemently denounced British colonial policies, including their sanction of general warrants and writs of assistance.

present in the courtroom when Otis spoke,
viewed these events as
“the spark in which originated the American Revolution.”
(Politicians might note……Otis lost in court but became a hero who won election to the Massachusetts Colonial Legislature.)
19 years later, Adams remembered Otis. 
Article XIV of the Massachusetts Declaration of Rights, written by John Adams and enacted in 1780 as part of the Massachusetts Constitution, added the requirement that all searches must be “reasonable” and served as the basis for the language of the Fourth Amendment:
And before that, the state of Virginia moved thusly:
Seeing the danger general warrants presented, the Virginia Declaration of Rights (1776) explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:[11]
Then there is the business of CONSENT TO SEARCH.
Consent searches are searches made by United States law enforcement personnel based on the consent of the individual whose person or property is being searched.

In the U.S., the simplest and most common type of warrantless searches are searches based upon consent.  No warrant or probable cause is required to perform a search if a person with the proper authority if a person CONSENTS TO A SEARCH.


Which has this interesting bit to it, namely the specified person must be present to all aspects of the search and has the RIGHT TO WITHDRAW CONSENT AT ANY TIME.

A consent search requires the individual whose person or property is being searched to freely and voluntarily waive his or her Fourth Amendment rights, granting the officer permission to perform the search.[1] The person has the right to refuse to give consent,[1] and except in limited cases may revoke consent at any point during the search.[3] In addition, the prosecution in any trial using the search results as evidence is required to prove that the consent was voluntary and not a result of coercion.[4]

 

I don’t much like excessive force on the part of police officers who I generally do like, so I found this interesting, it goes along with recently challenged citizen’s right to photograph arrests and confrontations……
A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime, unless state law says otherwise.
                          Check your own state’s laws.
WWII left horrific impressions on free Americans for a lot of reasons, and one of them was that European governments could demand TO SEE YOUR PAPERS and you better have them in hand and have them up to date or risk getting shot on the spot.  Go watch the opening of Casablanca again, and The Third Man, which instruct much.
To call our Constitution static or dead is a clear lie. It has been in flux since the day it was born. We have demanded the privilege in America of endless legal appeal to address justice.
AND……..
Bear in mind..If there is the determined removal of all law in these times when so few Americans seem to know what they think or stand for or why, there will be no refuge in certainties which may protect the very life that so confuses. The cry to Suspend The Constitution!! is heard from protesting citizen revolutionaries as well as governments.
Beware of imposition, whenever you find it, because it is a tyrant warring against the good nature of free people.


 

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2 thoughts on “The Fourth Amendment to the US Constitution; Consent, Or Not, Or Change Your Mind Midstream

  1. Well said and needs to be said – but I sadly suspect you are the voice in the desert. Try telling all that to a policeman on patrol and see if you do not get taken to the station…
    Sad, tragic, too late, but well said. Vera

    • Yes, I had the feeling kind of sweep over me as I wrote it, who am I kidding here. I suspect that it would be always worth the protest but that law enforcement is not aware of all the particulars of constitutional law and citizen rights, and you end up in the hoosegow til it’s straightened out. Hopefully that will be amended.
      I don’t believe Otis or Adams figured on the liberties taken, indeed they wrote with such miraculous precision so it could not be. There’s a way broad brush in the ’emergency’ details along with the devil.

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