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The Libertarian

Vin Suprynowicz

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Resolving a Utah case, the U.S. Supreme Court ruled unanimously May 22 that police officers may go into a home uninvited, without a search warrant, without knocking -- providing they assert they did so to break up a fight they saw through the kitchen window.

Under the Fourth Amendment, homes are supposed to be off-limits to government searches, except when officers have obtained a warrant from a judge upon presentation of “probable cause.”

In the past, the court has held there are exceptions for emergencies, such as a fire at the residence. In the May 22 decision, Chief Justice John G. Roberts Jr. said a fight in progress is that kind of emergency.

The case began in the early morning hours of July 23, 2000, when police in Brigham City, Utah, responded to a complaint about a loud party. The four officers testified they heard shouting from inside the house, including calls to “Stop! Stop!”

When they walked down the driveway, they said they saw two juveniles drinking beer in the back yard. From there, they reporting seeing through the kitchen window a young man swing his fist and strike one of the adults in the face, drawing blood.

The officers, shouting “Police!” entered the kitchen door, broke up the fight and arrested several of the adults for being drunk and disorderly. When the Utah courts suppressed the evidence against the adults, state prosecutors asked the court to hear the case to clarify what is considered an emergency exception to the Fourth Amendment.

Roberts said the officers did not need a warrant because they were breaking up a fight, not searching the premises. (Ah. So if they’d found marijuana or machine guns, there would have been no arrests?) Moreover, they didn’t need to knock before entering because they would not have been heard.

On its face, the ruling seems sensible. It would be absurd to expect firemen to wait for a warrant before racing into a burning home. It’s a short enough step to what happened here, to make this result predictable. But not entirely comforting.

Remember, the Brigham City officers had to “walk down the driveway” -- presumably entering private property without a warrant -- before they could see the fight through the kitchen window. This recalls the old joke about the nosy woman complaining that her neighbor is creating a nuisance by sunbathing nude and in plain sight. “Where?” asks the investigating officer. “Well, you have to get up here on the roof with these binoculars to see,” he’s informed.

Less amusing precedents abound. The court is fond of ruling that the Fourth Amendment is to be respected only where the person being searched has a “reasonable expectation” of privacy -- in their home and the “curtilage” immediately surrounding the home -- not out in the “open fields.”

In fact, in the 1984 case Oliver v. United States, the high court ruled it was fine for two Kentucky State Police officers, acting on a tip, to drive onto the defendant’s land, past his house, up to a gate which was marked “No Trespassing,” then to leave their vehicle, use a footpath to walk around the gate, and thence to proceed another full mile onto defendant’s property, at which point they finally spotted his marijuana crop.

The trial court initially ruled the defendant in the Kentucky case had a reasonable expectation of privacy -- the “No Trespassing” sign, the locked gate -- but both the Sixth Circuit Court of Appeals and subsequently the U.S. Supreme Court overruled, holding “An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.”

“Open” fields -- that are fenced, gated, locked, and marked “No Trespassing”? One wonders if the court would hold an unauthorized citizen has an equal right to wander onto a secure U.S. military installation with impunity, despite fences and posted warnings.

Now, apparently, activities conducted in one’s kitchen -- visible through the kitchen window by officers who have “walked up the driveway” -- are also exempt from any “expectation of privacy” which might bring the Fourth Amendment to bear.

Each incremental step may seem reasonable in itself. But few of us, these days, can afford to live on large wooded estates patrolled by “gamekeepers” bearing shotguns. if the Fourth Amendment protects only those things which we choose to do in the dark, while hiding under the bed, after sealing all our doors and windows with duct tape and aluminum foil -- what practical privacy do we really have left?


Charles Lotter writes in from Pretoria, South Africa:

“Vin, I have just finished reading your book ‘The Ballad of Carl Drega.’ It is thought-provoking in many ways, but especially so for me as a South African. It seems to me that, worldwide, governments are taking a wrong turn.

“Here in S.A., the bunny huggers who are up in arms about the proposal to cull the excess elephant population in the Kruger National Park. They want them fed contraceptives instead of having them shot. The fact that this won’t have any effect till a generation from now seems to escape them as does the testimony of wildlife experts (who have a lifetime of experience behind them) that a solution is needed now since the excess elephants are destroying the ecology and chasing out other species who compete with them for food.

“The cops work political agendas rather than enforcing the law. The merry men of the Central Firearms Registry refuse firearm licences for such wonderful, legally sound reasons such as ‘Women should not own handguns’ (I kid you not.)

“And there’s the draconian Firearms Control Act of 2000 (implemented on 1st July 2004) which seeks (officially) to severely limit firearms in private hands. However, as we gun owners have always feared and now feel is proven, this Act is backed by an unspoken political agenda to actually remove all firearms from private hands.

“The court cases have already begun and will escalate rapidly: The Black Gunowners Association is suing the government for all losses and damages suffered by those of their members who underwent criminal assaults after their licence applications were turned down. An ammunition manufacturer (NGA) successfully sued after the illegal confiscation of a container of 9mm which they legally imported to cover a shortage. ...

“The only way in which we will make the powers that be see the error of their ways is to smack them hard and repeatedly -- in the pocket, in the newspapers, in the courts and, hopefully, at the polls.

“I only wish the majority of the population had the will to fight. Instead, as always, at least half of the existing gun owners are meekly accepting the licence refusals and handing their weapons in -- or even just handing in their weapons without even trying, while saying that the process is too complicated, too long and too expensive.

“You are not alone in your problems in the U.S.A. -- it is a world-wide thing. The road will be long and hard for all gun owners.”


Back here in the states, Matthew G. writes in:

“Vin, I wanted to share an occurrence that I am forced to endure upwards of three times a week. I am the manager of a major sporting goods store, and part of our hiring requirement is the successful completion of a math test.

“This is a timed test. In six minutes a candidate must complete at least 25 questions correctly and must not have missed more than 7 percent of the total attempted problems.

“This test is really a ‘no-brainer.’ Here’s one of the most difficult questions in the entire exam: ‘A customer would like to purchase 6 pair of socks. Sock packages cost $2 for three pair. How much would 6 pair of socks cost the customer?’

“Applicants must be at least 18 years old ... and must have either a high school diploma or G.E.D. Yet each week I fail at least three applicants! Some weeks I’m unable to hire a single person because of failed math tests.

“Recently, a nice young woman (23 years old) was looking for a part-time position as she finished up her nursing degree. After giving her the required six minutes I asked her how she did. She said, ‘Great! I got to 63.” (This was very good news; most applicants don’t get past 30.)

“To my horror she had skipped over every single problem with words in it, contrary to my instructions. Of the 63 attempted problems she answered only 24, and of those 24 she correctly answered only 12.

“I asked her if she was unsure about the instructions. She parroted them right back to me: ‘Six minutes, don’t skip any, make sure to read the question before answering.’ (I add that last part because most high school grads think multiplication and subtraction really mean ‘add.’)

“I politely informed the young woman that her answers on the math test precluded her from employment at this time. In an impressive display of understanding, she then asked me what her pay rate would be and when she could start! After I explained that she failed the math test, she got very upset and said it wasn’t fair for our business to require a math test without giving the applicant time to study for it.

“Another example of the fine products we pay for each year when ‘graduation’ time rolls around.”