The Bill of Rights in Modern America: Revised and Expanded

8. Police Practices and the Bill of Rights

8 Police Practices and the Bill of Rights  .    .  In the late twentieth century America’s fear of violent crime, fueled by drugs and urban street gangs, prompted the government to get tough on crime. In the “law and order” atmosphere of the day those Bill of Rights guarantees that secure the right to be free from unreasonable searches and seizures and protect the individual from being subjected to custodial interrogation sometimes seemed to be inconvenient obstacles in the path to winning the “war” on drugs and street crime. Because of the tragic events of September 11, 2001, what Americans fear most in the new millennium is terrorism. In the midst of the new “war” on terror, those same constitutional limitations on governmental authority can now likewise be seen as impediments to national security. Yet, the Fourth and Fifth Amendments are as necessary today as they have ever been. While limiting what the police and the FBI can do in combating crime and terrorism, these amendments also protect privacy and individual liberty . As the renowned political scientist Edward S. Corwin once pointed out, liberty is “the absence of restraints imposed by other persons upon our own freedom of choice and action.”1 Such restrictions can come from two sources. One is other people, such as the mugger who robs us, or the terrorist who blows up the building in which we work. To be sure, the police and the courts safeguard us against the deprivation of our liberty by such individuals when they arrest and confine criminals and terrorists. What we too often forget, however, is that in unleashing these powers to ensure our freedom from violent crime and terrorism, we also loosen the restraints upon those who wield the levers of government power to eavesdrop, search, detain , and coercively interrogate regarding other perceived “emergencies.” When that happens, it is not another private citizen but the government itself that deprives us of our liberty and privacy. History has shown that the more unchecked power government has, the greater the likelihood is that it will abuse its power. The Fourth and Fifth Amendments exist to ensure that in trying to protect us from terrorists and criminals, government does not abuse its powers and become a bigger threat to our freedom than those it is combating. To understand the important role these provisions play in protecting our freedom, we might consider what society would be like without them. Suppose, for example, police receive an anonymous tip that several bombmaking terrorists are meeting at a home located somewhere in the 200 block of Second Street. Can the police enter and search all of the homes in that block in order to locate the terrorists? Can they use electronic surveillance to eavesdrop upon the conversations occurring in all of the homes on that block for the same purpose? Without the Fourth Amendment, which requires individualized justification for such intrusions, there would be no constitutional constraints protecting innocent citizens from such dragnet police practices. Suppose further that a public demonstration is held to protest U.S. foreign policy. Police arrest several of the demonstrators on charges of disturbing the peace and place them in small, windowless interrogation rooms. One demonstrator is repeatedly shocked with an electric stun gun in an effort to make him reveal the names of the leaders of the demonstration. Another is threatened that unless she cooperates, the authorities will seek to have her mother deported. In a third room a suspected demonstration leader is questioned around the clock without food, water, or sleep by relay teams of interrogators . His requests to see his lawyer are denied, and his pleas to be left alone ignored. Such practices, which occur regularly in other countries, are forbidden in our system of criminal justice because the Fifth Amendment gives each citizen the right not to be subjected to custodial interrogation. The framers of the Bill of Rights believed that “in a free society, based on respect for the individual, the determination of guilt or innocence by just procedures, in which the accused made no unwilling contribution to his conviction, was more important than punishing the guilty.”2 They chose to enshrine in the Constitution provisions that would preserve liberty, privacy, and the accusatorial system of criminal procedure that the United States had inherited from England. Even if the first Congress had not written down in the Fourth and Fifth Amendments guarantees against unreasonable searches and seizures and compulsory self-incrimination, eighteenth-century Americans would have had...