No knock, no problem

Today the U.S. Supreme Court ruled 5-4 that the U.S. Constitution does not require police holding a search warrant to knock before they enter a house. The majority said the evidence seized by police who march in unannounced does not have to be excluded at trial.

Before everyone goes wild and declares that the Bush judicial appointees have tipped us into a fascist police state, consider this:

The Fourth Amendment, which bars unreasonable searches and seizures, was never intended by the Constitution's framers to apply to local and state authorities.

In fact, we were midway into the 20th century before anyone suggested that it did.

It was the 1949 case of Wolf v. Colorado that declared the Fourth Amendment to be "incorporated" into the Fourteenth Amendment, which bars any state from denying due process of law to any person. The Supreme Court reversed a long history of precedents and ruled that the right to be free from unreasonable searches and seizures was so fundamental to due process of law that it must be enforced against the states as well as the federal government.

And it was not until 1961, in the case of Mapp v. Ohio, that the Supreme Court said evidence seized in an illegal search had to be excluded from a trial.

So the five justices who voted today to allow police to enter your house without knocking were really just returning to the view that this is a matter between you and your state government. It's your state constitution that should set the limits for local police. What makes sense to people in New York may not work for the people of Montana. And according to the founders, it shouldn't have to.


Copyright 2006

Source notes:

Wolf v. Colorado, 338 U.S. 25 (1949). Justice Frankfurter wrote: "The security of one's privacy against arbitrary intrusion by the police--which is at the core of the Fourth Amendment--is basic to a free society. It is therefore implicit in 'the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples."

Mapp v. Ohio, 367 U.S. 643 (1961). Justice Clark wrote: "Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise."

For more information and complete source notes, please see "How the First Amendment Came to Protect Topless Dancing." The essay is the appendix to The 37th Amendment, a novel set in 2056, forty years after the 37th Amendment has removed "due process of law" from the U.S. Constitution.

.