December 24, 2014

Good Intentions in Ferguson

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Posted on December 5, 2014 by Chuck Ramsay

You can look all you want, but you won’t find “good intentions” in the Fourth Amendment. As strange as it sounds, the Fourth Amendment has always existed as a form of civil rights that makes it harder, not easier, for law enforcement to investigate crimes. And while we can all agree that society would be safer if impaired drivers stayed off the roads, wishful thinking has never created an exception to the Constitution. That’s not our “spin” on the Constitution - the United States Supreme Court has already pointed out the absence of “good intentions” in the Fourth Amendment. In the 2001 case of Ferguson v. City of Charleston, the Court held that social policy objectives – no matter how valid or laudable – are not a sufficient reason to discard the warrant requirement. When the primary purpose of a search is the collection of evidence for use in a criminal case, the Fourth Amendment requires a warrant. If law enforcement want to skip the all-important step of getting a warrant, and try to argue that they had “consent” to execute a warrantless search, they’d better make sure that any consent they relied upon was truly voluntary. The Court makes this clear in Ferguson, when it says: The interest in using the threat of criminal sanctions to deter drug use cannot justify a departure from the general rule that an official non-consensual search is unconstitutional.

Ferguson involved pregnant women receiving prenatal treatment at a state hospital. Staff grew concerned about the rate of cocaine use among its pregnant patients. The staff tried a medical response – referral to treatment and counseling – but the incidence of mothers and babies who tested positive for cocaine remained unchanged.

Looking for a way to coerce the women into treatment, the hospital staff approached city officials and offered to cooperate in the prosecution of mothers whose children tested positive for cocaine at birth. Together, hospital staff and local law enforcement crafted a policy to identify and prosecute cocaine-using patients. The policy was broad, almost as complicated as Minnesota’s Implied Consent laws, and was geared towards prosecutions for drug offenses and/or child neglect, depending on the stage of the patient’s pregnancy.

The problem was that no one bothered to tell the patients about the policy and no one asked for their consent. Instead, the State gathered evidence without consent or a warrant, and then used the threat of prosecution to inspire patients to heed the hospital’s treatment recommendations.

In defense of the policy, the government claimed that it needed to coerce patients into treatment – they had “good intentions” – and that their noble goal was totally separate from the law enforcement interest in prosecution.

Sound familiar? It should, because this tactic bears a striking resemblance to Minnesota’s Implied Consent law. DWI suspects are required to “consent” to a warrantless search of their blood, breath, or urine, because refusal is a crime. “If you don’t let me take your blood, I’ll charge you with a felony.” Where is the choice in that?

In Ferguson, the Court didn’t buy the government’s “good intentions” argument, and reminded everyone that even if you think you have a “special need” to perform a warrantless search, if that search is being used to gather evidence of a crime you’re either going to need a warrant or true consent to the search. Ultimate social policy goals – even beneficent goals like protecting the health of mother and child – do not trump individuals’ privacy interests. The Fourth Amendment right to be protected from nonconsensual, warrantless searches doesn’t falter in the face of social policy.

These issues stir our emotions and rouse our personal values. Impaired drivers and pregnant drug-users both put others at risk. We Americans value fairness, and that’s not fair . . . but, in the eyes of our forefathers, neither is extracting “consent” by using the threat of criminal sanction. In a free society, we rely on the law to protect everyone, and the law is clear: without voluntary consent or a warrant, searching someone’s blood, breath, or urine is not only unfair; it’s unconstitutional.

Let’s not forget, the road to hell is paved with "good intentions."

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The acronyms DUI, DWI, OMVI and OVI all refer to the same thing: operating a vehicle under the influence of alcohol or drugs. The most commonly used terms are DUI, an acronym for Driving Under the Influence, and DWI, an acronym for Driving While Impaired.
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