Commentary

Cooperate — Or Else!

Few people seem to like the Fourth Amendment to the American Constitution. The Fourth Amendment is the provision that places limits on the power of the police to detain and search people. The unpopularity of the constitutional provision is perhaps understandable because it’s usually mentioned in the news only when a court declares that a police raid on a drug dealer’s apartment was unconstitutional. In the minds of many Americans, the Fourth Amendment only seems to benefit criminals.

The Fourth Amendment has gotten a bad rap. The Founding Fathers understood that a free society necessarily requires that the power of government to detain, interrogate, and search must be limited. It is a pity that so many Americans give the Fourth Amendment an adolescent — “What’s the big deal?” — shrug that runs something like this: I’ve never been searched or arrested and never will be since I’m not doing anything illegal. Such a view misses the point. It is not so much how many times a person benefits from the Fourth Amendment that matters. Rather, the key point is that this constitutional safeguard will be there when you need it.

Just ask Mary Ann and James Stumbo. One day, seemingly out of the blue, a social worker knocked on the door of their home. This bureaucrat not only demanded that she be allowed to enter the house, but she also announced her intention to interrogate the Stumbo children in private. The Stumbos were taken aback by all this because they were certain they had done nothing wrong. When the social worker admitted that she had no search warrant, the Stumbos told her to leave, and closed the door. They were not about to let this impertinent stranger speak to their children at all, much less outside of their presence.

The matter didn’t end there. The social worker returned with a court order that instructed the Stumbos not to “interfere” with the ongoing “investigation.” The Stumbos believed that if government agents did not have a warrant, they could refuse them entrance, but now the government was calling that “obstruction of justice.” Of course, the Stumbos could have surrendered to the demands after they finally discovered what had prompted the “investigation.” Someone had apparently called the Department of Social Services after spotting their two-year-old on the driveway, naked, on a warm summer day. That was the “incident” that set the legal process in motion.

The Stumbos were still appalled by the overzealous reaction to that telephone complaint and they did not appreciate the government’s bullying tactics — so they retained a lawyer to defend their constitutional rights. They took their case all the way to the Supreme Court of North Carolina. That court determined that it was the social worker’s demands, not the conduct of the Stumbos, that was unlawful. It was an important legal victory, but one that received scant attention outside of North Carolina.

The U.S. Supreme Court, however, will be hearing a similar controversy this month. Larry Hiibel was standing next to his truck smoking a cigarette when a police officer approached him and demanded to know his name. Hiibel was taken aback by the demand, said he was doing nothing wrong, and refused to say anything more. The officer then placed Hiibel in handcuffs and took him to jail. According to Nevada’s prosecuting authorities, Hiibel’s silence “obstructed” justice.

When the police do not have an arrest warrant or a search warrant, they often try to get people to “consent” to questioning — so that when the detention is later challenged in court they can say, “It’s true we had no warrant, but this detention was voluntary.” Larry Hiibel made it very clear that he was not going to play that game. Hiibel withheld his consent — and for exercising his right, he landed in a jail cell. Can standing quietly on a sidewalk possibly be a criminal offense in America? The Supreme Court will soon decide whether it was the police officer’s arrest, or Mr. Hiibel’s silence, that was unlawful.

The Founding Fathers believed in the axiom that power tends to corrupt, but this is something that modern Americans tend to forget. Far from honoring the constitutional rights of the people, we are increasingly seeing our federal and state governments mischaracterize our rights as “crimes.” Unless Americans wake up and better appreciate the Fourth Amendment, this trend will eventually win the day and trample the Stumbos and Hiibels of future generations. As Judge Learned Hand warned many years ago, “Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it.”

Timothy Lynch is director of the Project on Criminal Justice at the Cato Institute. Today, the U.S. Supreme Court will hear the case Hiibel v. Sixth Judicial District, for which Mr. Lynch filed an amicus brief.