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Archive for October, 2009

Nazi Checkpoints

October 4, 2009

Drip, drip drip. Chip, chip, chip. The frogs in the pot don’t realize that the water is beginning to boil.

Citizens of the United States are supposed to be able to travel freely and not be subjected to unreasonable searches or seizures. Although the Constitution doesn’t specifically mention “travel,” the right to travel has been a firmly embedded right since the Articles of Confederation guaranteed that “the people of each State shall have free ingress and regress to and from any other State.” There is also a long line of case establishing that states can’t treat newcomers differently than long-time residents unless the state restriction is necessary to serve a compelling state interest.

And in the 1999 SCOTUS case of Saenz v. Roe, 526 US 489 (1999) Justice Stevens notes:

The word “travel” is not found in the text of the Constitution. Yet the “constitutional right to travel from one State to another” is firmly embedded in our jurisprudence. United States v. Guest , 383 U. S. 745, 757 (1966). Indeed, as Justice Stewart reminded us in Shapiro v. Thompson , 394 U. S. 618 (1969), the right is so important that it is “assertable against private interference as well as governmental action … a virtually unconditional personal right, guaranteed by the Constitution to us all.” Id., at 643 (concurring opinion).

Then we all know, or should know, of course that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” The operative word being “unreasonable.” Generally government can’t stop us or search our person without having some reason to do so. Government can’t go on fishing expeditions. Government is supposed to know what specific contraband it is looking to seize and particularly where that contraband is likely to be found prior to engaging in any search. Government is not supposed to set up so called “dragnets” where it nets the innocent as well as the guilty.

If you are seized you are not free to go about your business. What constitutes a seizure can vary from state to state, but generally if there is a show of authority (men in blue, orders to stop, guns, flashing lights, badges and other such acts/things) and you yield to that show of authority/force than you have been seized and prevented from going about your business.

This is a confusing area of the law. On the one hand the cops can set up drunk driving checkpoints because of the immediate danger that freaking dumb drunks pose to the rest of us. On the other hand Indianapolis v. Edmund, 531 US 32 (2000) made clear, at least for the time being, that cops can’t set up checkpoints with the purpose of interdicting illicit drugs. Interestingly enough the so called “Conservative Justices” – Scalia, Thomas and Rehnquist were in favor of allowing random police stops of citizens going about their business. As Rehnquist noted in his dissent random law enforcement checkpoints are legitimate to “…checking for driver’s licenses and vehicle registrations, and because there is nothing in the record to indicate that the addition of the dog sniff lengthens these otherwise legitimate seizures, I dissent.” Conservative my ass!! He is a Republican.

My definition of a Republican: someone who thinks the government can do nothing right unless and until it comes to kicking in doors, searching, seizing citizens, legislating morality, law enforcement and the military and than the government can do no wrong. I’ve never been certain how some people can hold two mutually exclusive beliefs. That’s me though.

Anyways, now that the foundation has been built: 1. we have the right to free intrastate and interstate travel and 2. we have the right to be free from unreasonable searches and seizures let’s look at some startling violations that are happening as we speak. Tipping point? You decide.