Hamilton, Madison, and Jay

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Location: Mesa, Arizona, United States

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Saturday, November 17, 2007

Boston PD's end-run around the Constitution

That's what it sounds like to us, but the Boston police commissioner thinks it's a good idea. I'm no lawyer, but I'm betting that there will be a challenge or two to this if the Boston PD executes this program:

Boston police are launching a program that will call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children's bedrooms.

The program, which is already raising questions about civil liberties, is based on the premise that parents are so fearful of gun violence and the possibility that their own teenagers will be caught up in it that they will turn to police for help, even in their own households.

In the next two weeks, Boston police officers who are assigned to schools will begin going to homes where they believe teenagers might have guns. The officers will travel in groups of three, dress in plainclothes to avoid attracting negative attention, and ask the teenager's parent or legal guardian for permission to search. If the parents say no, police said, the officers will leave.

If officers find a gun, police said, they will not charge the teenager with unlawful gun possession, unless the firearm is linked to a shooting or homicide.

The program was unveiled yesterday by Police Commissioner Edward F. Davis in a meeting with several community leaders.

"I just have a queasy feeling anytime the police try to do an end run around the Constitution," said Thomas Nolan, a former Boston police lieutenant who now teaches criminology at Boston University. "The police have restrictions on their authority and ability to conduct searches. The Constitution was written with a very specific intent, and that was to keep the law out of private homes unless there is a written document signed by a judge and based on probable cause. Here, you don't have that."

Critics said they worry that some residents will be too intimidated by a police presence on their doorstep to say no to a search.

"Our biggest concern is the notion of informed consent," said Amy Reichbach, a racial justice advocate at the American Civil Liberties Union. "People might not understand the implications of weapons being tested or any contraband being found."

But Davis said the point of the program, dubbed Safe Homes, is to make streets safer, not to incarcerate people.

This, I'm sure, sounds like a smart idea on the outside, but I still think that what this amounts to is an end-run around the Constitution. The Constitution is explicit with the idea of searches and seizures; a warrant is to be obtained. Now Allah has done some quickie research on this with regard to searches. His findings:

They claim they’re not going to prosecute kids in whose rooms guns are found, they’re just going to confiscate the weapon. And what if they find drugs? It depends on how much they find, they say. The question: An unconstitutional search or not? I’m no Fourth Amendment scholar but some cursory googling reveals that, according to Schneckloth v. Bustomante, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” So as long as they’re asking to come in and not trying to force their way in, they don’t need probable cause. But what about a situation like the one here where it’s not the subject of the search who’s consenting (the teenager) but a co-resident (the parent)? The answer may depend on whether the teen’s at home when the cops come calling. United States v. Matlock holds that “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared. But what if the nonconsenting person isn’t absent? What if he’s right there, screaming, “No, you can’t come in!”? The Court reached that question last year in Georgia v. Randolph and held that in that situation the cops can’t come in. Everyone who lives there has veto power; just be sure you’re there to exercise it when the cops arrive or you’re out of luck.

Then again, we’re not talking about a roommate/roommate situation in the Boston case. We’re talking about legal guardians and minors. Might that change the equation? Maybe. Here’s something buried near the end of the majority opinion in Randolph:

[T]o ask whether the consenting tenant has the right to admit the police when a physically present fellow tenant objects is not to question whether some property right may be divested by the mere objection of another. It is, rather, the question whether customary social understanding accords the consenting tenant authority powerful enough to prevail over the co-tenant’s objection.

Would “customary social understanding” give parents the right to consent over the objection of their children? Probably, yeah.

Personally, if I were a resident of Boston, lived in a crappy neighborhood, and the police came knocking on my door wanting to search my kid's room for a firearm, they'd be told to go get a warrant. "Thanks for your concern, officer, but I think I'll search the room myself, without you being here, unless, of course, you have a warrant."

I hate to say it, but the ACLU guy has a point. Many people in these target neighborhoods may not understand what the cops are doing, or what their rights are. So, I'd suggest the ACLU get some literature out there, and get informed people out there so citizens do understand their rights.

In the meantime, I agree with Allah on his prediction:

Prediction: The program gets scrapped before it gets started.

An informed public can virtually guarantee that prediction will come true.

Publius II


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