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The Police and Privacy

By John Guy on October 15, 2013 in Civic Blog

As we climbed the marble steps of The United States Supreme Court to hear arguments about police road blocks, my wife Chichi and I recalled two incidents in which the glow of pleasant experiences was interrupted by police departments.

8775603_lFor example, Chichi and I, plus 20,000 other Parrot Heads, turned right out of The Music Center with tunes like “Margaritaville” replaying in our heads.  Jimmy Buffett had given us a wonderful night.  We felt good.  However, the Noblesville, IN powers-that-be did not want us to continue to feel good.  Down the road, in an otherwise pitch dark location, we saw dozens of police lights flashing brightly enough to disturb the aging eyes of persons developing cataracts.  Sure enough: a police road block.

On another occasion, we pulled our 19-foot runabout to Lawrenceburg, IN, launched on The Ohio River, and found ourselves watching Cincinnati fireworks at Riverfest.  You can guess what happened on our return.  There they were, at 11 p.m., a dozen or so state and local police officers stopping every boat driver at the launch point , looking into our eyes, and evaluating our status, demeanors and capabilities to drive our cars and trailers.

Did either department have “probable” cause that John and Chichi had been drinking.  No.  Did they have probable cause that some individuals near us, in other cars and other circumstances, might have been drinking?  Of course.  As we were about to learn, road blocks to apprehend impaired drivers are constitutional, but the case we heard was different.  Justice Sandra Day O’Connor described it:

In August 1998, the city of Indianapolis began to operate vehicle checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The city conducted six such roadblocks between August and November that year, stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes, while 49 were for offenses unrelated to drugs. The overall “hit rate” of the program was thus approximately nine percent.

Perhaps the hit rate was satisfying to law enforcement, but The Indiana Civil Liberties Union (as it was then known) felt differently. It sued for an injunction. The ICLU’s legal director, Ken Falk, argued the case in August, 2000.  The Court heard it as Indianapolis et al v Edmond et al.

You gotta love The Supreme Court.  Completed in 1935, at a cost less than the relevant appropriation, the exterior marble and Corinthian style command respect, perhaps a bit of awe.  The courtroom is more human.  It, too, is of marble, with mahogany benches rising above the fray.  At precisely 10 a.m., the justices enter through curtains directly behind their seats, giving us the first glimpse of people who are, after all, human.  We saw the “supremely” courteous Justice Ruth Bader Ginsburg and the slovenly Justice Clarence Thomas.  Our view of those 9 unique people placed a human stamp on Justice O’Connor’s majority opinion that the Indianapolis road blocks violated The Fourth Amendment of The United States Constitution (and a similar provision of The Indiana Constitution).  Here is the language of the amendment:

The right of the people to be secure in their persons, 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 be searched, and the persons or things to be seized.

Looking back at The Court’s final opinion we see an intellectual struggle to distinguish the actions in Indianapolis from previous road blocks approved by the court.  Those were to limit illegal immigration and to apprehend drunken drivers, objectives which, in The Court’s view, are just fine, but a random effort to uncover a general criminal act, the transportation of illegal drugs, is not OK.  To investigate that criminal act, probable cause or reasonable suspicion is necessary.

The right to privacy, and the protection against unreasonable searches and seizures, are moving targets.  These rights clash directly with the perceived need for police protection and for the arrest and conviction of criminals.  To an extent unimagined by those who wrote The Constitution, cameras record events on city street corners, at financial institutions, and in public and private security infrastructures everywhere.  Government agencies monitor mail delivery, telephone calls, text messages and postings on social media, all without specific probable cause, but with the presumption that bad things happen where cars converge and where money is exchanged.  In legal proceedings such as arbitrations and court trials, precise records of telephone calls and credit card use are obtained either by voluntary submission or by subpoena.  Nothing is private.

In modern life, the “civically literate” person must be aware of constitutional protections while accepting that those protections are interpreted in different ways.  Perhaps, therefore, citizens should live a life in which “the family parrot may be sold to the town gossip.”

Good Night Dorothy.  You Done Good. 

John Guy is a certified financial planner, is author of “Middle Man, A Broker’s Tale,” and president of Indianapolis-based Wealth Planning & Management LLC. He regularly writes for the Indianapolis Business Journal and contributes to the Civic Blog.