The Stasi Headquarters - East Berlin

Live Free or Die?

LIVE FREE OR DIE

New Hampshire’s official motto: Live Free or Die. This was a core belief in the American ideal when this nation first began. It is still a core belief of many Americans. But, too sadly, we have become a nation with a vast majority of people sharing a different motto: Live free, but I don’t mind losing a few liberties if it keeps me safe.

What a shift.

DO WE NEED THE GOVERNMENT TO GIVE US RULES FOR LIVING?

This isn’t just about how much soda we’re allowed to drink.

I read an article recently on parenting. It discussed spanking your children. A large Canadian study was conducted on parenting and creating successful adults. The study found spanking counterproductive and ineffective. The article, in turn, went on to describe the push for legislation — in Canada and here in the United States — to ban spanking your children.

(And we’re not talking about injury-producing child abuse. There are rules against that.) 

My personal opinion on spanking is irrelevant to my greater point. So is your personal opinion. The greater point is this: when have we become so soft that we feel the need to cry “mommy!” at the top of our lungs to our government? At what point did our culture devolve into one where people’s instant reaction is to demand the government “do something!!”?  Why is it that we see the only solution to our country’s problems as government regulation? When did we become okay with a nanny-state?

Have we become so soft that we can’t confront the issue through national discourse, personal debate and societal peer-pressure? Do we need a law?

ARE WE SO SCARED THAT WE WILL GIVE OUR GOVERNMENT THE MOST PERSONAL INFORMATION WE WILL EVER HOLD? 

This blog stems from a recent article in the New York Times entitled California and the Fourth Amendment. As I see all too often, people being arrested for DUI are forced to give a DNA sample through the form of a buccal mouth swab.

I said “arrested.” Not convicted.

Remember: police need a search warrant for your file cabinet. A warrant specifically describing the items they seek, along with how they know those items are there, and how this information is reliable enough to establish probable cause. Oh yeah, and what crime they suspect you of committing and how those items are related.

The police do not need a warrant or probable cause to forcibly take a sample of your DNA however. Or, better put, they’re doing it without a warrant. 

The Ninth Circuit Court of Appeals is considering whether the collection of DNA samples of all arrestees to build a national database – federal, state and local agencies all participating — is constitutional.

The argument by some in the government, essentially, is that DNA is our 21st century equivalent of a fingerprint. Why can’t we utilize the greatest identifying mechanism the human race has ever seen? We don’t need a warrant for fingerprinting (for identification purposes investigating other crimes), so why would we need a warrant for DNA?

“Imagine all the crime we can solve… Imagine how much safer you’ll be. We won’t use it for illicit purposes. Trust us.” 

And trust all of the budding wannabe politicians out there now who haven’t been elected  yet. Trust that they’ll do the right thing with your DNA when they’re in office. Your DNA — the most private and comprehensive information about you as a person we have ever seen.

Trust the 40 year old U.S. Senator that hasn’t even been born yet. I’m sure he wouldn’t abuse the information he has on file. I mean, past political figures have never engaged in such practices to achieve their personal ambitions. Why would anyone in the future?

We have just mapped the human genome. And we are realizing the incredible predictive value DNA holds on virtually everything about a person. We’ve only scratched the surface. From propensity for disease to acting in particular fashion to intelligence… the list is just beginning.

Would health insurance companies be interested in this information? I guess we will have to trust. Have faith.

First, the most troubling point is that law enforcement took potentially unconstitutional action without any permission from the public it serves. And we’re not talking about a few test-cases here. This is on a scale that is mind-bogglingly massive. If it turns out this practice is absolutely unconstitutional — meaning it is completely illegal — tens of thousands of people were the guinea pigs.

Second, we have no idea how extensive the information database within a person’s DNA sample really is. What we do know is how much more there is than we currently know. Put simply, the information we can extract from DNA is constantly growing. We have no end in sight as to how much information — how much personal, private information — is embedded within your DNA.

So, just don’t get arrested. Then you won’t have to worry about it. But the client who called me last week who slept in his car because he wanted to sober up only to be awakened to policeman arresting him for DUI, I guess you just need not drink. Then you won’t be in that situation.

(Think that doesn’t happen all the time? See Mercer v DMV — California had to define what it means “to drive.”)

Gotcha. Now the government can control what you do even if it’s legal. 

Let’s ban abortion. You won’t have to worry about getting pregnant if you just don’t have sex. Let’s not invite people into our church and show them a better way to live — by example — let’s force them by law.

 *I support any and all positive outreach programs done on a private basis by religious institutions to integrate their principles into society. This is not a slam or a position on anyone’s belief system other than challenging the notion of Father Government. 

MATT TERRY — YOU’RE A DUI DEFENSE ATTORNEY, WHY DOES THIS CONCERN YOU?

The Fourth Amendment reads:

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 or things to be seized.

A government agent could not detain you without a warrant. Such a detainment was considered a “seizure” under the Fourth Amendment and a warrant was required.

My last name is, unfortunately, a very famous name in Fourth Amendment jurisprudence. The case of Terry v. Ohio was decided by the U.S. Supreme Court in 1968. (392 US 1.)

This case was a major blow against the Fourth Amendment protection against an overreaching government. It held that under the police powers of the state, an officer may “seize” you for investigation under circumstances that fell short of probable cause. A new standard was created: Reasonable Suspicion of Criminal Activity. Would a reasonable person in the officer’s position suspect criminal activity? If so, a person may be detained for investigative questioning.

Now, this may have been a necessary exception to the protections set forth by the Constitution. Many crimes — such as DUI — are effectively stopped before someone is killed or injured. An officer pulling over a vehicle (considered a “seizure”) may be justified in that a person weaving all over the road is a sufficient safety concern and certainly reasonable suspicion of DUI, not to mention traffic laws.

But, the Fourth Amendment has been watered down. No-one can argue with that. We have created an exception to the Constitution.

AND THEN CAME THE CHECKPOINTS.

Sobriety checkpoints became a major law enforcement tool. Despite having absolutely NO suspicion — let alone reasonable suspicion — of criminal activity, police departments across the country began Soviet-style checkpoints to “make sure you weren’t doing anything wrong.”

The Supreme Court said checkpoints were fine. DUI’s were so problematic that it justified yet another exception to the Constitution. Michigan v. Department of State Police was a case decided by the U.S. Supreme Court in 1990 upholding a Fourth Amendment challenge to the suspicion-less seizures. (496 US 444.) The Court recognized that it was, in fact, a seizure of motorists without any suspicion of crime. But it was upheld based on “the State’s interest in preventing drunken driving, the extent to which this [checkpoint] system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program.”

Without a lengthy discussion of checkpoint litigation, I will say both the U.S. Supreme Court and the California Supreme Court upheld sobriety checkpoints — suspicion-less seizure by government agents — with certain criteria that was required within the checkpoint to keep it within the confines of those cases. Ingersoll v. Palmer is the California case on point, citation being 43 Cal.3d 1321.

And the drumbeat continues. Those criteria have been litigated and in large part done away with. The erosion continues. I’ll detail that sometime later. 

The point of this discussion is simple: can a village raise a child? Can a society regulate acceptable behavior through speech and education, discourse and debate, peer-pressure and ostracizing outlandish conduct? Do we need a nanny state or can we do it ourselves?

And most important, once we give up a freedom or liberty, does anyone really believe we’ll ever get it back? Does anyone look beyond their own lifetime?

Isn’t that what made the Constitution so exceptional? The ability of the founding fathers to look into the future and create laws that would apply the same even as the world appeared so different? Wasn’t it absolutely amazing that they would look to the future and not place blind trust in the future politicians and holders of power? Did they not envision Senator Joe McCarthy?

In sum, all Americans are affected. And it may be too late. 

If they erode the Fourth Amendment to the extent they already have, you are sadly mistaken and frankly foolish if you believe they won’t do the same to the right to bear arms, the right to speak freely, or the right to practice your religion when and how you choose. If you sincerely believe these ongoing governmental practices will not affect you, frankly — but kindly — extract your head from … the sand. 

– Matt Terry, Esq.

 

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