Who Needs Search Warrants? Just Follow Your Nose! By C.J. Maloney
(2011-02-14 at 19:20:29 )

Who Needs Search Warrants? Just Follow Your Nose! By C.J. Maloney

Keep knockin and you cant come in,
Keep knockin and you cant come in,
I guess you better let me be.
- Perry Bradford

Riding the commuter trains of my area is a study in how people react to
being mildly uncomfortable for any length of time. Being designed to
seat people of a body type far slimmer than what my line usually
encounters makes riding to work with a seatmates bulging oversized body
squeezing you into the wall, arm rest or the bulging girth seated on
your other side almost a given. Lucky for me, I learned how to properly
fold and read The New York Times even when hemmed into a packed subway
car so handling the task while immobilized between two people who could
stand to lose a f ew stone each is not beyond my ability.

So that is how I was able to read Justices Look Again At How Police May
Search Homes on a recent ride home. Apparently, the brave warriors who
f ight our War on Drugs have found getting search warrants too much of a
hassle, and lawyers for the Obama administration and the state of
Kentucky are before the Supreme Court arguing they must be able to
forcibly enter any home should they simply "smell something funny" and
"hear strange noises" from the other side of a door. I would gasp in
horror at their brazenness, but I can barely breathe due to the 300
pounds of American on each side of me. Every time the mountain to my
left turns a page of the magazine she is reading I f eel a rib crack.

I am getting squeezed, too, from the other side, and I keep a wary eye
on the man. He is balancing a slice of pizza, a can of diet cola and the
sports page on top of his stomach. I worry about his ability to juggle
it all, but at least I have my iPod on so I do not need to hear him
slurp and chew for the next hour, though I can still hear a young girl,
ten rows up, talk into her cell phone. So I turn up the volume and thank
God for His blessings, like having the ability to drown out the world
about you. It is the little things that count. I go back to reading.

The reporter tells me that some police off icers down in Kentucky were
wandering the hallways of an apartment building (searching for a suspect
who had sold drugs to one of their informants) and broke down an
apartment door from which they claim to have smelled marijuana and heard
noises that "made them f ear evidence was being destroyed." So without
any warrant at all they kicked in a door and arrested a completely
diff erent man than the one they were searching for as the poor sap they
grabbed, by chance, had marijuana and cocaine in his apartment. No
surprise, the Kentucky Supreme Court suppressed the evidence. Even less
of a surprise, Federal and Kentucky political authorities went
apoplectic with that decision.

They argue that we are in a war, a War on Drugs, and necessity and speed
make search warrants too cumbersome for that war to be won. Police on
the scene must, they say, have discretion to enter our homes as
determined by them, on the spot. This ruse has been tried (and denied)
before, back in 1948, when the Supreme Court found "the smell of drugs
could provide probable cause for a warrant - but it did not entitle the
police to enter without one." The Fourth Amendment to our Constitution
is blunt on the matter - no home may be entered but with a warrant,
specifically pointing to what is to be searched and seized. We also have
ample historical evidence and sad knowledge of humanitys flawed state;
both argue irrefutably for the use of search warrants to Restrain Abuse
Of Power.

The power to conduct warrant-less searches that the Obama Administration
and the State of Kentucky are demanding is simply too dangerous to ever
be granted, whatever the excuse. Couple such a power with your average
American Police Departments Drug Enforcement Unit, most of whom enjoy
pimping out as if they are off f ighting in Afghanistan rather than
placid, domesticated America, and you will never get it back.

So what is to be done should the Supreme Court allow the Constitution to
live and breathe and grow until search warrants are declared passé?

Quincys Report concerning "writs of assistance" in Massachusetts just
before our Revolution declared, "written constitutions, established by
the people themselves, and beyond the control of their representatives,
necessarily obliged the judicial department, in case of a conflict
between a constitutional provision and a legislative act, to obey the
Constitution as the fundamental law and disregard the statute."
(Kurland & Lerner, 228) There we have our marching orders, regardless
of what the Supreme Court decides.

If you are a police off icer, it is your sworn duty to refuse to enter
any home without a legally issued warrant describing the place and
person to be searched, even if you smell ganja and hear people singing
along to Bob Marley from behind the closed door. If you are jury on a
case with evidence obtained by an off icer following his nose rather
than the law, you must acquit or refuse to indict. And if you are a
judge sitting high on your bench, you must throw out any guilty verdict
derived from evidence seized without a warrant. If there ever is to be a
practice crying out for nullification, warrant-less searches are it.

No War on Anything, let along drugs, is worth given up the security of
our homes for. Either absolutely everyone has a right - even the stoners
amongst us - or absolutely no one does. If heavily armed police snooping
outside our doors (how long until they introduce the sniffing dogs?)
breaking in as their nose and ears tell them is proper, if that is the
Road to "Victory" in this War on Drugs, I vote we reconsider the
whole thing.

Being a natural pessimist, I am certain America will soon enough have
police who substitute their nose for search warrants and the democratic
mob, pacif ied by declarations we are now that much closer to winning the
War on Drugs, will sink back into the couch. That is sad and it bothers
me, but I may as well rail against the wind - or push back against the
mounds of fat encasing me on each side.

Which I now need to do, this is my stop.

Source Cited

Kurland, Philip B. & Lerner, Ralph. The Founders’ Constitution, Vol #5.
(Liberty Fund, Inc. Indianapolis, IN, 1987)

January 22, 2011

CJ Maloney lives and works in New York City. He blogs for Liberty & Power
on the History News Network website and the DailyKos. His first book Back
to the Land (Arthurdale, FDRs New Deal, and the Costs of Economic
Planning) is to be released by John Wiley and Sons in March 2011.

Copyright © 2011 by LewRockwell.com. Permission to reprint in whole or
in part is gladly granted, provided full credit is given.