March 10, 2013
Rarely does a week go by without some story of some court or government agency somewhere attacking the Fourth Amendment and its proscription against unreasonable searches and seizures.
For example, the Department of Homeland Security claims it can search anyone’s electronic devices within 100 miles of the border. So if you live within a 100-mile band surrounding the nation, the government says you have no Fourth Amendment protection.
In another story, the FBI has been secretly spying on Google users.
I could write volumes on the erosion of our Fourth Amendment rights. Let me demonstrate with one recent story.
At about 1:15 a.m. Nov. 30, 2011, Randall E. Morlock, 51, of Lima, was pulled over by Officer Mark Link of the Lima Police Department. Link made the stop because his dispatcher told him the license plates on Morlock’s pickup truck were not valid and needed to be confiscated.
Link ran the plates by the dispatcher because Morlock made a brief visit to a duplex that Link believed to be a drug house. This home was in a high-crime area of Lima where there had been past problems with prostitution, drugs, robberies, assaults and even shootings.
So far, no problem. But here is where it gets scary.
After pulling Morlock over, Link had Morlock leave his truck. While Officer Jesse Harrod held Morlock away from the pickup, Link searched the passenger side of the truck — without Morlock’s consent and without a warrant — and found a tissue containing a small quantity of crack cocaine.
During an April 4 hearing in Allen County Common Pleas Court, Link testified that he searched the truck because Morlock made a “furtive movement” as Link pulled him over.
A “furtive movement”? Nearly everyone makes “furtive movements” when stopped by police, usually grabbing their papers and whatnot. Is that all it takes to lose the protections of the Fourth Amendment?
The trial court thought so as did the 3rd Ohio District Court of Appeals in a Feb. 25 opinion written by Judge John Willamowski.
To be fair, the cocaine eventually would have been found because the pickup was going to be impounded and the police can search an impounded vehicle for “inventory purposes.”
Still, we have constitutional rules in place for a reason. There was no valid reason for Link to search Morlock’s truck at the scene. Morlock was separated from the truck and therefore posed no threat to the officers or others. Nor could Link claim he was searching for evidence of the crime for which he stopped Morlock. The invalid plates were on the outside of the vehicle.
The Court of Appeals rested its theory on the tenuous proposition that it was “conceivable” the officers might have let Morlock re-enter the truck to retrieve personal items before impounding the truck.
In other words, if a cop claims a “furtive movement,” real, imagined or flat-out invented, and the court can think of some possible scenario in which the driver will re-enter the vehicle at some time in the future, then the Fourth Amendment can be violated.
Ultimately, Morlock reached a plea deal with prosecutors and served 46 days in jail. He should not have served a day after Link’s search.
I use the above case as a mere example of what is happening in courts across the nation.
This is what happens when the people don’t pay attention to the erosion of rights.
The U.S. Supreme Court said it best in a 2009 case: “A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment — the concern about giving police officers unbridled discretion to rummage at will among a person’s private effects.”