Unreasonable searches

One price of liberty is that some constitutional guarantees make the defense of freedom more difficult


Where is the line be­tween gov­ern­ment’s need to pur­sue evil­do­ers and the pri­vacy rights of Amer­i­cans, in­clud­ing safe­guards against un­rea­son­able searches? That line al­ways should be drawn in fa­vor of pro­tect­ing cit­i­zens against an over­en­thu­si­as­tic gov­ern­ment.

Last week, the U.S. Supreme Court heard ar­gu­ments in three cases that test the lim­its of per­sonal free­dom. One case deals with war­rant­less sur­veil­lance of Amer­i­can cit­i­zens. The other two asked whether there should be a per­for­mance stan­dard for drug-sniff­ing dogs, and whether a po­lice pooch nos­ing around on your porch con­sti­tutes an il­le­gal search.

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The 1978 For­eign In­tel­li­gence Sur­veil­lance Act al­lows the fed­eral gov­ern­ment to mon­i­tor in­ter­na­tional tele­phone calls and other elec­tronic com­mu­ni­ca­tions by for­eign na­tion­als to and from peo­ple in the United States. In 2008, the re­quire­ment that the gov­ern­ment get a war­rant first was re­moved. Now, fed­eral agents can mon­i­tor nearly any­one they want for al­most any rea­son — or no rea­son at all.

Sev­eral groups sued, in­clud­ing hu­man rights or­ga­ni­za­tions, law­yers for de­tain­ees cap­tured in the war on ter­ror, and jour­nal­ists. They claim that lis­ten­ing to their phone con­ver­sa­tions and read­ing their emails with­out a war­rant vi­o­lates con­sti­tu­tional pro­tec­tions against un­rea­son­able search.

But be­fore the con­sti­tu­tion­al­ity of war­rant­less wire­taps can be de­ter­mined, the justices must de­cide whether there is a case to hear. Fed­eral law­yers say the plain­tiffs can’t sue, be­cause the sur­veil­lance is se­cret, so they can’t prove their com­mu­ni­ca­tions were in­ter­cepted.

That ar­gu­ment is par­tic­u­larly cyn­i­cal and should be re­jected. As Justice An­to­nin Sca­lia noted, the court has ex­am­ined cases in the past in which no one had stand­ing.

They should do so again in this case. War­rant­less sur­veil­lance of emails and phone calls fails the same con­sti­tu­tional tests as po­lice at­tach­ing a global po­si­tion­ing sys­tem to an au­to­mo­bile.

The drug-dog cases orig­i­nated in Flor­ida. One case chal­lenges the be­lief, shared by justices, that dogs trained to sniff out drugs al­most never are wrong. In 1983, the Supreme Court said that a war­rant wasn’t needed to sniff suit­cases. In 2005, they ex­tended war­rant­less searches to au­to­mo­biles.

But drug dogs are not in­fal­li­ble. In fact, stud­ies have found that they are right less than half the time. Worse, their false hits ap­pear to be in­flu­enced by sub­tle cues from their han­dlers.

The other Flor­ida case asks: Is a drug dog sniff­ing out­side the door of a home con­duct­ing an il­le­gal search? If the an­swer is no, po­lice will be able to use drug dogs to sweep ran­domly for drugs in apart­ment com­plexes, pub­lic hous­ing, and other places — no prob­a­ble cause needed. So the an­swer must be yes.

The high court has said heat-de­tect­ing de­vices can’t be used to iden­tify houses in which mar­i­juana might be grow­ing. A drug dog sniff­ing a door jamb with­out a war­rant ap­pears at least as in­tru­sive.

Law en­force­ment of­fi­cials some­times find that the free­doms they are sworn to up­hold are in­con­ve­nient to their search for law­break­ers, ter­ror­ists, and oth­ers who would do Amer­ica harm. When that hap­pens, they have to be re­minded that with­out those con­sti­tu­tional pro­tec­tions, there is noth­ing to de­fend.