Friday, April 26, 2013

The Cautionary Instruction: Massive manhunts and the Fourth Amendment

The Pittsburgh Post-Gazette/Ipso Facto
April 26, 2013

Last Friday, in Watertown, Massachusetts armored vehicles, humvees and literally hundreds of heavily armed law enforcement officers went door-to-door looking for the surviving Boston Marathon bombing suspect.

Some residents answered the door with their hands above their heads as agents rushed into their homes with heavy weapons, tactical gear and an unprecedented showing of domestic para-military force. The search, initially lauded, has some questioning its legality from a civil liberties standpoint.

Did some civil liberties get trampled upon in the manhunt of the century?

Let’s start with the path some “political leaders,” if left to their own devices, would have set upon. A New York state senator was advocating torture to extract information from the suspect. Never mind that the suspect, Dzhokhar Tsarnaev, is a U.S. citizen.

Sen. Lindsey Graham tweeted last Friday, “If captured, I hope Administration will at least consider holding the Boston suspect as enemy combatant for intelligence gathering purposes.” He and several fellow Republicans criticized the civilian justice system in a statement, insisting that the freedom to interrogate Tsarnaev for information about possible future attacks “should be our focus, not a future domestic criminal trial that may take years to complete.”

Tsarvaev was originally questioned by the FBI without being warned of his Miranda rights. The Justice department cited the “public safety exception” first established in 1980 by the U.S. Supreme Court in New York v. Quarles.

Back to the manhunt. The Fourth Amendment provides in part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Did law enforcement authorities have sufficient probable cause to search an entire neighborhood simply because they believed a suspect was somewhere in that neighborhood?

If any of those homeowners in Watertown would have refused to answer the door, permit access to their respective homes or answer police questions, police would have needed a warrant to gain access. Could the police have established probable cause for a warrant for a particular house?

The constitutional question would seem to depend on whether the search was reasonably limited in scope, the dangerousness of the suspect, and the strength of the government’s case that the suspect may be in the area and cannot be caught any other way.

In Illinois v. Lidster, the U.S. Supreme Court determined reasonableness in the context of the Fourth Amendment as “we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.”

The gravity of public concern and the advancement of public interest are obvious. The unanswered question -- was the severity and extent of the wide-scale interference with liberty warranted?

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