As I listened to one of the speakers at the Republican National Convention state that Republicans stand for the Constitution, I immediately thought of the Court's undermining of Fourth and Fifth Amendment rights. There are many horror tales, but still one of the worst is contained in Schneckloth v. Bustamonte (1973). There the Court ruled that police did not have to tell a citizen that he or she had a right not to be searched before securing consent to a search. Astonishingly, the Court said that if officers had to tell a citizen of the right to refuse consent, serious doubt would be created "whether consent searches could continue to be conducted." In other words, if citizens knew their rights to refuse consent, they would do so. Better to hide this right from the citizens, let law enforcement conduct searches that were really the product of coercion, and then pretend that they were voluntary all along.
According to the Kamisar casebook, students often wonder why suspects carrying drugs readily consent to searches. There are many possible answers: (1) The suspect did not know of a right to refuse; (2) The story that the suspect consented is invented; (3) The suspect is a moron. I would not guess that criminal suspects as a group are the brightest group in the population, but I would think that explanations 1 and 2 overwhelmingly outnumber explanation 3, and the Court knows it. So what we have is a police state substituting for the Fourth Amendment and a Court that is supposed to enforce the Fourth Amendment deciding that it would be too costly if citizens knew their rights.
Meanwhile, I am told by Tracey Maclin that New Jersey requires police to obtain written permission before launching consent searches. Somehow, against all odds, the Garden State is still standing.
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