Wednesday, May 25, 2016

"...the average American commits three felonies a day, whether they know it or not."

They’ve Spit on the Bill of Rights Yet Again

By Mark Nestmann

Your friendly Uncle Sam has done a great job of ending the civil liberties protections enshrined in the US Constitution and Bill of Rights. Think of the PATRIOT Act, FATCA, and Obamacare, just to name a few examples.

But individual states are running roughshod over the Constitution as well, especially in the context of the “War on (Some) Drugs.” One example is the notorious practice of civil forfeiture, where police can seize your property without accusing you, much less convicting you, of a crime.

But there are many others. A case in point is Wisconsin. That state’s Supreme Court recently ruled that police do not need a search warrant to forcibly open locked doors in a private home.

In 2012, paramedics arrived at a residence in Kenosha, Wisconsin, after an emergency call. The patient, Antony Matalonis, appeared badly battered, with one side of his body covered in blood. City police accompanying the paramedics learned that Matalonis lived with his brother in a nearby residence.

Once the ambulance left, the officers then went to the home of Charles Matalonis, to investigate the circumstances surrounding Antony’s injuries. Charles allowed them to enter the home without a warrant. That turned out to be a big mistake.

Once inside the home, police conducted a “protective sweep” for more injured people, and for their own protection. During the sweep, they discovered marijuana paraphernalia and noticed the smell of “pot” originating behind a locked door. They asked Charles for permission to enter that room. When Charles refused, they threatened to enter forcibly. Charles then gave them a key. Inside the room, they discovered a single marijuana plant. Charles was arrested for manufacturing a controlled substance, a felony punishable by a 3½-year prison term and a $10,000 fine.

The Kenosha County Court found Charles guilty, but the verdict was reversed on appeal. Prosecutors then asked the state Supreme Court to reinstate the conviction. And in a 4–3 decision, they did so.

It’s bad enough that a citizen can be fined and imprisoned for possession of a plant with medicinal properties. But with this decision, the Wisconsin Supreme Court has declared that so long as police have permission to enter a home with or without a warrant, once they’re inside, they can conduct a protective sweep. Police then have the right to rifle through your belongings, break down locked doors, and seize evidence that can later be used against you.

Critics of the decision call it appalling, and I agree. But it should come as no surprise. The Wisconsin decision is only the logical outgrowth of the continuing erosion of civil liberties endorsed by Congress and the US Supreme Court.

Our founding fathers tried to ensure civil liberties would be protected by attaching a “Bill of Rights” to the Constitution – 10 amendments in all. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons and things to be seized.

Your home has a uniquely protected status. Unless police have probable cause – something more than a hunch – they can’t enter your home without a warrant, or unless you give them permission to do so.

However, the PATRIOT Act gives the FBI the authority to break into your home without informing you a search took place. Agents may gather evidence related to any federal crime to be used against you.

Your right to avoid a warrantless search ends completely in any “emergency” type situation. The aftermath of the Boston Marathon bombings in 2013 demonstrated this new reality. Residents of Boston and surrounding towns were forced to submit to warrantless searches of their homes by heavily armed police.

Warrants are also incredibly easy for police to obtain. They have been issued to search homes based on window coverings that hinder police from peeking inside, having a “heat source” in the home, or even possessing a security system.

Incredibly, even if Charles had refused permission for police to enter his home, they could have used his refusal as evidence to obtain a warrant. That’s a consequence of a 1996 federal circuit court decision. In that case, a homeowner declined to allow police to search his home. Police presented this refusal as “evidence” to a magistrate and obtained a search warrant. Based on the results of the search, the homeowner was convicted on criminal charges. A federal appeals court ruled that while the magistrate improperly issued the warrant, evidence police seized during the search could be used against the homeowner.

The War on (Some) Drugs, the War on Terror, the War on Money Laundering, the War on Tax Evasion, and other militaristic campaigns to fight crime, terrorism and social ills aren’t going away. They’re intensifying, and the Fourth Amendment is just one casualty. Indeed, research by lawyer Harvey Silverglate concluded the average American commits three felonies a day, whether they know it or not.

If you live in the US, you’re part of these wars, whether you like it or not. Maybe it’s time to think about a “Plan B.”


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