Warrantless Searches or Constitutional Protections?J. Bradley JansenMay 22, 2002There has been a much-debated controversy between the government's ability tosecure our rights and liberties and its ability to go after the bad guys. In thecurrent debate, the bad guys are genuinely bad and threaten our lives andliberties. No one questions that the government should get all of the informationit needs to bring the perpetrators of the tragedies of 9/11 to justice. The realquestion is by what means.With unveiled calls to patriotism, government spokesmen have been urging greaterinvestigatory powers and criticize those who raise questions that might impedetheir quest to go after terrorists. A closer look at the issues might indicate whois closer to the ideas of our Founding Fathers and better able to carry the bannerof patriotism.The Fourth Amendment to the Constitution was ratified as part of the original Billof Rights. It reads simply, "The right of the people to be secure in theirpersons, 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 besearched, and the persons or things to be seized."At issue now is a proposal in both the House and Senate to grant the U.S. CustomsService the authority to search outbound international mail without a warrant.While I have been publicly critical of the U.S. Postal Service for their pooroverall record on privacy, I will admit that they have been consistent andresolute in their adherence to our Fourth Amendment protections againstwarrantless searches.On one basic level, this is a bureaucratic turf battle with Customs trying topoach authority from the Post Office. Between the two, on this issue, the PostOffice has the better case and opposes the "Border Search Authority for CertainContraband in Outbound Mail" provision. While the Postal Service maintains that itworks vigorously to interdict contraband in the mail, they say that never in ourhistory have federal officials opened and searched the personal correspondence ofAmerican citizens without a warrant.Customs officials have been lobbying the Hill explaining that they need to be ableto open outbound international mail without a warrant if they have reasonablecause to suspect the mail contains certain contraband. Reasonable cause? This islegalese for saying that they would like to do whatever they want without havingto meet the probable cause standard that has been in effect ever since the Bill ofRights was ratified in 1791.A major risk of granting this authority to Customs Officials would be the loweringof professional standards and the return of the civil asset forfeiture abuses thatCongress worked to correct in the Civil Asset Forfeiture Reform Act of 2000. Sincenearly all currency here has trace amounts of cocaine, trained dogs of the CustomsService would automatically alert officials to the presence of all cash beingshipped.Unfortunately, I fear that such circumstances, coupled with the proposed newauthority, would quickly degenerate into a feeding frenzy for bureaucrats whochronically feel that they suffer the consequences of limited budgets. Of course,reform of the civil asset forfeiture laws so that no money seized goes to theagencies involved would go a long way to undo this perverse economic incentive.
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