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An era of chemical McCarthyism is at hand, and guilty until proven innocent is the new slogan. George Lundberg, Editor, American Medical Assn. Journal, On Drug Testing, US News & World Report, 15 Dec. 86. INTRODUCTION America professionals is a nation a duty of to laws, not of men. higher Legal law have preserve the

principles which are the foundation of the Constitution, the supreme law of the land. The technicalities balancing power between government and the citizen in the Bill of Rights, were important enough for Americans to sacrifice family, home and business to win in the Revolution against England. The learned right what to it be was free like from to unreasonable live without search it. and Hard seizure of persons and property was won after Americans experience taught Americans that loss of the presumption of innocence dangerously expands the potential for government abuse more by fair allowing than The a guilt government to be to be inferred in cases from against mere the accusation. To Americans who lost the right, a jury seemed judge free abuses government. when right from excessive from fines that

imposed by a person who got to keep some of the money arose Americans suffered the resulting process.









communities when they forget the history of law. the history of injustices righted.

Law grows

hand in hand with history, and law in its noblest form is The War on Drugs has brought an assault on the Constitution the true magnitude of which can only be understood against the background of actual American experience leading to the Bill of Rights. This Article briefly reviews the current state of the law in the war on how drugs, the by war followed on drugs by is a short history unjust to demonstrating practices repeating the





establish liberty and justice for all. THE DRUG WAR EXCEPTION TO THE FOURTH AMENDMENT AND THE

PRESUMPTION OF GUILT INHERENT IN FORFEITURE OF PROPERTY Government claims to need unrestricted power to search and to confiscate property without trial to win the war on drugs are not unprecedented. found these procedures to Unlimited search and seizure be so unfair, insidious and powers were used against Americans by England. Americans immoral as to justify revolution and to prohibit this in The right of and seizures, and

the future the Fourth Amendment was adopted: and effects, probable against unreasonable by searches or

the people to be secure in their persons, houses, papers, shall not be violated, and no Warrants shall issue, but on cause, supported Oath affirmation, particularly describing the place to be searched, and the persons or things to be seized. In part this provision, along with the Fifth and Sixth Amendments, implement the presumption of innocence by requiring some proof of guilt before a person is searched and property seized.

Despite this history, in 1989 the U.S. Supreme Court upheld random urine drug testing of federal customs employees with no suspicion of illegal drug use, even when the Commissioner of Customs believed the customs service to be largely to drug-free, be seized and in National Treasury it was Employees admitted Union v. Von Raab. allowed The urine of federal officials was searched when

probable cause did not exist, and prior judicial process was not needed at all. of other cases Von Raab was the logical extension Fourth prior Amendment approval under law by declared judge the or renouncing without per se

over 25 years ago that, searches conducted outside the judicial process, are magistrate, unreasonable Fourth

Amendment--subject only to a few specifically established and well delineated exceptions. The power to search without a warrant has been vastly extended. For example, the Supreme Court upheld road blocks where every car can be directed into a Rest Area, drivers questioned and vehicles searched even though there is no individualized suspicion of criminal activity. Because 2% of the drivers may be guilty, the 98% of drivers who were innocent were also subjected to search. Justice Scalia, dissenting in Von Raab, asserted that there are some absolutes in Fourth Amendment law. determine what those absolutes are. CIVIL FORFEITURES OR SUMMARY CONFISCATION OF PROPERTY The drug war has been used to justify confiscating property without trial and giving government agents incentives to be aggressive by rewarding them with some of the monies seized. Forfeiture powers have been granted to police conducting Terry type searches without a warrant. In It is difficult to









seizures of contraband by police under the plain touch doctrine do not violate the Fourth Amendment proscription against unreasonable searches and seizures. In the sorry case of the Bennis family, the U.S. Supreme Court ruled an innocent owner has little protection if a co-owner uses jointly owned property in the commission of a crime. John Bennis drove the family Pontiac to a portion of Detroits 8 Mile road suspected by police to be used for trysts. Mr. Bennis accosted a prostitute and was charged place. and convicted of gross indecency. Prosecutors moved to forfeit the family car in which the indecency took Ms. Bennis, contending she was an innocent victim The of the crime, argued she should not lose her property.

Supreme Court ruled against her concluding she need not know her car would be used in a crime in order for the state to seize it. Not only is the presumption of innocence being lost, it appears innocence itself may no longer be a defense. Civil forfeiture is a summary proceeding initiated by a seizure warrant which avoids all the protections one would have in a criminal case. The government need only

show probable cause the property is forfeitable. Owners of seized property may contest the seizure but the government has the property and owners have the burden of proof. Often owners are required to file suit within limitations periods as short as 10 days after seizure or suits are barred. reliable forfeiture estimate cases, is no that in about charges 80% are of all criminal ever One civil brought

against the property owner.

Civil forfeiture allows police

to act as accuser, judge and jury all rolled into one.

Civil forfeiture takes its lead from the Controlled Substances Act of 1970 where Congress allowed forfeiture of all types of assets used or acquired in dealings involving illegal drugs. money one is one's or Section 881(a) allows seizure of vehicles, that are the proceeds not of, and real When the valuables with

property used to facilitate, an illegal drug deal. charged money, Abuses passed the a drug the offence, accused convicted, bail

government can seize one's car, boat, house, freeze all and have 1984 jail been without pending Congress which trial. In these cases, a presumption of guilt exists. widely reported. Crime Since Comprehensive Control Act,

vastly expanded the governments seizure power, the U.S. government seized more than $6 billion worth of property of persons facing criminal charges and those already convicted. In 1993 alone, the U.S. Department of Justice (DOJ) seized more the $556 million and the DOJ Office for Asset Forfeiture estimates another $2 billion is on the way. It is reported that under the Coast Guard's zero tolerance program the Coast Guard boarded a $3 million yacht without suspicion of any crime. board. The owner was not on The Coast Guard found a few shreds of marijuana in

a wastebasket and confiscated the yacht to sell at auction. The fact that the owner was not present, claimed he could not possibly own the pot, and that the punishment was greatly excessive were "frivolous issues" compared to the Governments interest in Total War on Drugs. All 50 states have passed civil forfeiture statutes. Asset seizure to has other been so lucrative In that it 30% has of been asset expanded cases. California,

seizures are in nondrug cases.

In New Jersey, a mother

lost her 1987 Oldsmobile because police said her son used it to drive to a local Sears store where he allegedly stole a pair of pants. Conviction by a jury is not a prerequisite to seizure of property allegedly used in crime or fruits of criminal activity. The DOJs list of forfeited property extends from houses, stocks, and private planes to coin collections, coffee makers, and a pair of baby shoes in the case of a man impersonating a psychiatrist. Not law surprisingly, in given the amount In pay the of money to be 90 own has the are made, some police have apparently had interests other than enforcement making and 10 seizures. used to California, for U.S. their DOJ to percent of the $56 million seized in 1991 was kept by lawenforcement programs. state and authorities In the last police years,

transferred more than $1 billion in forfeited property to local based agencies. Cato According Washington libertarian Institute, police

outfitting gyms with the money and officers drive around in BMWs seized from suspected drug dealers. In Volusia County, Florida, sheriffs patrolling I-95 stop cars at random. If drivers are carrying more than $100 in cash, the police seize the excess arguing that in that area large amounts of cash can only result from drug deals. That some of the cash contains cocaine residue is used to support this position. This should concern anyone who ever carries cash because the U.S. Treasurys own estimate is that over 90% of all U.S. currency in circulation may have cocaine residue on it. Civil forfeiture windfalls have also prodded police to review closed case had files. their In one reported incident, police grandparents home forfeited when

discovered that a grandson they allowed to live with them

had grown








succeeded in keeping their home, many other innocents have not been so fortunate. Some politicians, not satisfied with the present level of violence against the Bill of Rights, recommend that every American returning from a foreign country be strip searched; that the Armed Forces be turned into a National Police Force and Customs Agents be given the right to shoot down "suspected" aircraft. Prohibition supply erupted did not illegal into order Laws booze. created Their in our great great towns, criminal wealth gangs to ultimately in he our was

corrupted police and Courts. Drug Prohibition has similarly violence corruption because institutions and assaults on our freedom. Just as Al Capone hits on his competition drunk, drug gang wars are fought over turf and money not because the drug lords are high. This death and erosion of the Bill of Rights results from a war on drugs which were legal in American before 1919 and which cause less than 5,000 direct deaths a year, compared to the 300,000 annual deaths from tobacco and 50,000 from alcohol. Studies show 40 million Americans, who are no threat to anyone, are occasional peaceful users of some illegal drug. These facts suggest the violence, corruption and erosion of the Bill of Rights resulting from the War on Drugs is unjustifiable. The above illustrates law enforcement that ignores the presumption of innocence, prohibitions on general searches and seizures, the right to notice of charges and to have an attorney, difficult and to the due process these right current not to be punished It is with the until guilt is established after trial by jury. reconcile practices

higher law foundation of the Constitution and Bill of Rights. THE HIGHER LAW FOUNDATION OF THE BILL OF RIGHTS A comprehensive history is beyond the scope of this Article, but for our purposes starts with the distinguished English jurist, Lord Coke who asserted the power of the courts to declare void acts of Parliament and the King when contrary to the unwritten English Constitution. In a time when it could have cost him his head, Lord Coke asserted even the King was subject to a higher law, which Coke called natural law. When laws, even those passed by a majority of elected representatives, violated natural law rights, independent courts had the duty to declare the law void. Lord Coke found authority for this power in ancient Roman Law. The higher law was derived by Coke from maxims found in Justinian, such as the principles every mans home is his castle and no man should be tried twice for the same offence. who violated them. JOHN LILBURNE AND THE FIGHT FOR FAIR PROCESS John pamphlets Lilburne in England imported in 1638. and distributed before political the Star Summoned These immemorial sources of law helped Americans legally justify their rebellion against a King

Chamber, Lilburne refused to swear the "Oath of Purgation." This Oath required the accused to swear that he had not committed the crime charged. a confession Quakers, a crime not of guilt. At innocence existed. Protestants, to be a Catholics of the and other sects church. opposed the Oath as a matter of conscience, because it was member Anglican Refusal to take the Oath was the time no presumption of

NonAnglicans could be presented with the oath, refuse to swear because it required recognition of a false god, and be deemed guilty of the crime charged. To many, this violated basic fairness, and intruded on religious freedom. Lilburne refused to take the Oath because it was "against the law of God and the law of the Land," horses. He may have preferred it. and said he would refuse the Oath even though I be pulled to pieces by wild Lilburne was held in contempt, whipped, fined, and put in solitary confinement. Liburnes suffering for fair procedures and his commitment to endure inhumane punishment rather than abandon principle inspired support both in England and the colonies. Massachusetts Puritans were also victims of the Oath. Following Lilburnes example, they adopted the landmark "Body of Liberties" in 1641 prohibiting self-incrimination by oath or torture and requiring government to prove its case by independent witnesses. In 1645 the House of Lords ruled the Judgment against Lilburne violated the Magna Carta and Lilburne was granted damages. the higher law of Lord Coke, This reaffirmed

outlawed self-incrimination

and acknowledged the presumption of innocence attached to persons accused by the government. Lilburne continued to fight for fair procedures and justice. political He was arrested repeatedly and was tried for his views four times. Lilburne resisted unfair

governmental procedures, even though they were common at the time. At his very last trial, Lilburne won for the first time the right to receive a copy of the charges against him and to be represented by a lawyer. Lilburne forced the government to concede it was unfair to require a person to defend against unwritten, shifting allegations









without the assistance of a lawyer. Lilburne died in prison at 43 after spending most of his life in jail for his view that the individual is entitled to fair procedures when accused by the government. Lilburnes life was studied in America during the 100 years prior to the Revolution. Lilburnes struggle for fairness ultimately led to rejection of the inquisitorial system and adoption of the system guaranteed in the Bill of Rights, where the accused enjoys the presumption of innocence, may remain silent and require the government to prove its case without resorting to coercion. for future strife with England. UNREASONABLE SEARCH AND SEIZURE REJECTED By 1763, smuggling, not of drugs, but of molasses to make rum, tea and other taxed items, was a major problem in the Colonies. a smuggler or In some parts of America almost everyone was the friend of a smuggler. Why? Because These higher law rights were widely embraced in the Colonies and lay the foundation

Americans didn't want to pay taxes imposed by England on imported goods. When the British got a tip that smuggled contraband was stored somewhere, they had to get a Judge to issue a search warrant. Often, the smugglers friends alerted him and the goods were moved before the Redcoats could get a warrant and arrive to search. When practically local juries the British made up of caught time smugglers, who they had to a the impossible obtaining convictions objected before


taxation without representation that the smugglers were evading. Of course, smugglers also kept prices down for jurors when they went shopping for tax free goods. The jury acting as the conscience of the community, or what some


have called simply smart shoppers, refused to enforce what they saw as immoral laws. To get around these problems, Parliament passed the Intolerable Acts. The Quartering Act was opposed for several reasons, but using the army as a police force was one. Act multiplied the number as of customs Americans cannot care. trial. Act regarded baneful their harpies; safe idle under The Sugar whom drones; their bureaucrats

wretches...of such infamous characters that the merchants possibly think interest Forfeiture of private property was allowed without If a ships captain tried to evade customs duties, The Stamp written of were stamp Acts free press needed as and a these speech because

Crown agents could seize the vessel and cargo. imperilled Taken the documents approval. regarded literally by governmental Intolerable the threatening

together Colonists


rights won by patriots such as Coke and Lilburne. WRITS OF ASSISTANCE--GENERAL SEARCH WARRANTS AUTHORIZED To enforce these laws, Parliament authorized general search allowed warrants Redcoats judge called to Writs of Assistance. place, the any These time Writs search to any without of

presenting credible evidence of probable cause before an independent justify search. Writs Assistance were very helpful against smugglers. They also allowed the men holding them to exercise arbitrary power and even extort money. If a colonist didnt want to be searched or have property forfeited, he could pay up. WARES CASE In received a a case Writ that of became notorious, Assistance from a a man named Ware customs official.

When a Judge ordered a sheriff to bring Ware to court for violating the law against swearing on Sunday, Ware listened


to the Judge, then asked if he was finished. my power. the I command you to let me search your

When the house. from

Judge said he was, Ware said, let me show you a little of Under Writ, Ware tore the judges house apart

cellar to attic and then started on the Sheriffs home. The arbitrary power to search and seize property from innocent people was frightening, and made all other rights seem insecure. With absolute power a searcher could find and take ones books, records or valuables, leaving one in the difficult position of trying to sue to recover. This episode was fresh in mind when the Writs of Assistance case came on to be tried. WRITS OF ASSISTANCE CASE James Boston. Otis had been a Kings Advocate General in He resigned rather than argue in support of Writs

of Assistance for the Kings. When merchants asked his help to defeat the Writs, Otis said, In such a cause I despise all fees. Otis made his case under the unwritten English Constitution, which had no Fourth Amendment, only Cokes higher law. The Kings attorney argued that Writs of Assistance were necessary to protect the country against foreign and domestic enemies and that collecting taxes efficiently was more important than protecting the rights of individuals. This argument did not persuade many Colonists in the audience who recalled Wares case. To them, governmental convenience did not justify the extremes to which citizens had been subjected by one who had absolute authority to search and confiscate property. Otis argued brilliantly against the Writs stating: In the first place, the writ is short it is directed to every subject in the Kings dominions. ... A


man is accountable to no person for his doings (under the writ). Every man (with a writ) may reign secure in his petty tyranny and spread terror and desolation around him, until the trump of the archangel shall excite different emotions in his soul. [A] person with this writ...may enter all houses or shops, at will, and command all to assist him [in his search and seizure]. lord it over us. [B]y this writ not only deputies but even their menial servants are allowed to What is this but to have the curse of Customhouse we are Canaan with a witness on us; to be the servant of servants, the most despicable of Gods creation? ... officers may enter our houses when they commanded to permit their entry. please,

The[y] may enter, may

break locks, bars and everything in their way; and whether they break through in malice or revenge, no man, no court can inquire. Otis cited Bare suspicion without oath is sufficient. Coke for the proposition engraved that on each his man had and





imprinted there by his Maker.

Otis contended the higher

law takes precedence even over the survival of the State. Otis warned the King that Writs of Assistance were the type of corrosive and arbitrary power that had cost one King his head and another his throne in English Revolutions. argued that the fundamental the very rights to be made free Otis from

unreasonable searches and to retain property until justly convicted were things that government legitimate. When government failed to respect those rights, it abdicated legitimacy. Otis concluded that Writs of Assistance were general search warrants violating the higher law rights of Englishmen. If a man could be searched and his property







the hard

protection earned


jury, then all other rights were insecure. Homes could be invaded, would be businesses afforded in disrupted, trials before wealth officers. confiscated legally and without recourse. Little protection government Otis declared: I will to my dying day oppose with all the powers and faculties God has given me all such instruments of slavery on the one hand and villainy on the other as this Writ of Assistance is. John Adams, a young lawyer, later President, who watched the case said those who heard Otis' impassioned defense of higher law rights "went away ready to take up arms in the defense of Liberty. course, the Kings Judges upheld the Writs. USING THE ARMY AS POLICE--DENIAL OF JURY TRIAL--AND TYRANNY Colonists in Boston were furious, they organized Stamp Act riots, tumultuous Town Meetings and attacks on customs officials. On October 1, 1768, two regiments of British Redcoats arrived in Boston. to enforce unjust laws. The Sugar Act had denied Colonists the right to trial by jury. Colonists felt safer entrusting their liberty and property to twelve members of their community than to the Kings officials. Patrick Henry, in May 1765, made a ringing speech that drew the charge of treason, and pushed through the Virginia Legislature resolves stating Americans had higher law rights including the right to jury trial when accused by the government. Americans convened the first Stamp Act Congress to respond to the Intolerable Acts. The Stamp Act Congress acknowledged the duty to obey valid laws made by King and Parliament, but condemned Writs This added fuel to the fire because standing armies could be so easily used by the King Of





denial issued stamps

of on

trial probable


jury. cause trade by

Colonists neutral the often and were

asserted trial by jury was an inherent right and that only specific business colonies other driving warrants requiring sharply judges were legitimate. Americans merchants refused to do and The British Sons of of with declined. Liberty, officials Stamps

encouraged by merchants, rioted and pillaged in Boston and towns, stamp burning effigies into royal collectors hiding.

destroyed by the mobs. Prime Minister Townshend came to power and passed the Acts bearing his name. To enforce these Acts Townshend provided more Writs of Assistance and smaller cutters for tax collectors to chase smugglers into shallow waters. To increase from forfeiture collections, Townshend abuses provided occurred that when officials were to be paid a portion of the property seized colonists. Not surprisingly, governmental officials were allowed to keep part of what they confiscated. Human nature led to unreasonable search and seizure in the quest for riches. The presumption of innocence eroded. Due process mockery of of law before get property back was seized became a in cases suing to ones property

presided over by crown officials who were paid out of the proceeds of what was forfeited. indicted fellow King George with was for the a Thomas Jefferson condemned insurrections of of our and his was this in his Draft Constitution for Virginia, 1776, which inciting subjects Wilkes allurement to many forfeiture and

confiscation. John battle hero colonists and against unreasonable search forfeiture


He had been a victim of Writs of Assistance in


England. In 1769 Wilkes sued the English Secretary of State and won damages for abuses applauded suffered this under Writs of of the Assistance. Americans vindication

higher law right to be free from general searches and confiscatory forfeitures. THE GASPEE INCIDENT, BOSTON TEA PARTY AND REVOLUTION The the Gaspee was a cutter sent to Providence, was Rhode all Island, in 1772, to stop smuggling. Merchants complained Commander, Lieutenant Dudingston, stopping boats, even small boats headed to market. When Dudingston discovered smuggled goods he ordered them shipped to Boston even though the law required trial in the colony where the goods were seized. In June, Dudingston organized a ran the in Gaspee which aground trying to board a suspected smuggler. When the news reached Providence, merchants raid Dudingston was wounded and the Gaspee was burned before the tides could float her free. strongly opposed to random, Clearly, some colonists were warrantless searches and

arbitrary confiscation of property. This was followed by the Boston Tea Party, a party that, as one wag joked, provided tea for all the codfish off the Banks of Newfoundland. In response England passed the Boston Port Closing Bill precipitating the Revolution of 1776. THE CONSTITUTION AND THE BILL OF RIGHTS During the Revolution the United States existed under the Articles of Confederation which established a very weak central government. After the Revolution, economic problems prompted of a convention warned that to the that rewrite American did the Articles would of not the Confederation. A minority of delegates, led by George Mason Virginia, a people accept Constitution not guarantee


fundamental Revolution.









For a number of reasons no bill of rights was adopted by the convention. When the Constitution was published, many American patriots, called Antifederalists, opposed it. Patrick Henry declared he would prefer another revolution to a Constitution without a Bill of Rights. Federalists argued a Bill of Rights was unnecessary because the whole Constitution was a Bill of Rights in that it established a government having only enumerated powers. According to the Federalist argument, if the Constitution did not expressly give government did the not power have to search without and a no warrant, further government that power,

protection was needed. This reasoning did not allay the concerns of the people. As claimed the the States would As debated of a create ratification, Bill a of new a King Bill the and of Antifederalists proved the and powerful Jefferson was the his of in omission popular Rights

Constitution Parliament. convinced essential.

opposition that as known his


Thomas "Father




Madison, switched

Constitution," first Congress.



campaign for Congress to introduce a Bill of Rights in the The Constitution was ratified on July 2, 1788, after an uncertain campaign. As venerated as it is today, it is hard to believe the Constitution was narrowly adopted by a people concerned over the omission of a Bill of Rights. Several Rights. states expressly conditioned ratification on Madison's promise the First Congress would add a Bill of


So important were these fundamental freedoms that 210 amendments were proposed. One pertinent to this discussion provided: all general warrants to search suspected places, or to apprehend any suspected persons, without specially naming or describing the persons or place, are dangerous, and ought not to be granted. quickly Rights Madison what is became absorbed salaries. in Congressional However, the First Congress tax a laws and fixing of the now staunch Bill passing 17


advocate, answered now the

introduced those 9th who

amendments his


Constitution ought to guard "the great rights of Mankind." thought law proposals by didnt to the in sufficiently protect higher rights pointing




Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." After a compromise between the Senate and House, and approval by President Washington, 12 amendments were sent to the States for ratification. The States ratified the 10 amendments CONCLUSION Fortunately, Americans have begun resisting the invasions of the Bill of Rights used in the War on Drugs. Legislators have introduced proposals which would increase the a governments criminal burden of be proof a to a preponderance for or clear and convincing evidence standard. conviction forfeiture. significant Amendment. Some have demanded civil that are the Bill of Rights on December 15, 1791, securing higher law rights for all Americans.


The Supreme Court in five cases since 1992 has case, Austin Austin also v. gives United States, to the held idea civil that

restricted the move to expand civil forfeiture. The most forfeiture was punishment and was limited by the Eighth support


civil forfeiture may constitute double jeopardy. legislators, attorneys, physicians and

The New has

York County Lawyers Association, a panel of 42 judges, educators condemned the war on drugs in part because of the toll on the Bill of Rights. Though fought searches Americans background practices. The entrusted for some the waged of It is progress Bill the of has Rights been made in the for by curbing general which law these has forfeiture abuse, it is difficult to envision those who tolerating The and is War of on freedom the tarnished Drugs Bill held constitutional. Revolution the the Constitution

higher itself of

submitted law

become a threat to life, liberty and property. higher to foundation the after Rights of legal professionals centuries

adversity demands preservation. Legal professionals have a special responsibility to nurture freedom. We have a duty to remind government officials and others we encounter in our daily work, of the historic struggle for the higher law that is the foundation for the freedom that is the birthright of every American. ENDNOTES