Responding to my post about the recent Supreme Court decision that allows officers to arrest someone detained after an illegal stop, Jazz Shaw at Hot Air says the following:
As to the actual legal questions we should have been tackling, I return yet again to what precisely it was that the Founders were trying to say when they established the Bill of Rights. They provided protections for the innocent against government officials using their massive power to bully and oppress them. The government can’t simply harass you and search you without probable cause to believe that you are breaking the law. They can’t quarter troops in your home. They’re supposed to leave you alone if there’s no reason to think that you are acting in a criminal fashion.
Right off the bat, I must note with all due respect that the assertion that the protections of the Fourth Amendment, or any of the other provisions of the Bill of Rights that can become an issue in a criminal case were only intended to protect the innocent simply does not comport with either the text of the Amendments themselves or the history behind it. The first part is relatively easy, of course, because there’s nothing in the text of the Fourth Amendment that suggests that its protections are limited to the “innocent.” The main reason for this, of course, is because the Founders understood the that one of the fundamental principles of English and American law is that a person who is accused of a crime is presumed innocent unless their guilt is proven beyond a reasonable doubt after a trial before a jury or Judge, or if they have agreed to plead guilty under oath. In some sense, then, there is no such thing as a distinction between “guilty” and “innocent” for purposes of the Fourth Amendment, because everyone accused of a crime is presumed innocent until it has been proven otherwise. Additionally, it has been a long standing concept in American law, and in the British law upon which it is based, that it is more important to protect the rights of the accused than to ensure that a “guilty” man is convicted. As the English legal philosopher William Blackstone, who had literally written the book that lawyers in both the United Kingdom and the United States relied on as a primary treatise on the law, famously put it, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.” John Adams himself put it this way when he defended a group of British soldiers accused of murder during the Boston Massacre: (Source)
It is more important that innocence should be protected, than it is, that guilt be punished; for guilt and crimes are so frequent in this world, that all of them cannot be punished. … when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, ‘it is immaterial to me whether I behave well or ill, for virtue itself is no security.’ And if such a sentiment as this were to take hold in the mind of the subject that would be the end of all security whatsoever.
The ideas behind the amendment can be traced as far back as as the early 17th Century when the great English legal philosopher first proclaimed the idea that we now express as “a man’s home is his castle,” and that English Common Law began to recognize that even the King could not order the search of an Englishman’s home without the issuance of a warrant based on probable cause. The Fourth Amendment exists because the British, through the offices of the King’s representatives in each of the thirteen colonies in North America, had abandoned the practices that had long been established under English Common Law and engaged in widespread searches justified either by generalized warrants that didn’t name specific individuals, or no warrant at all, all in an effort to track down people allegedly evading the increasingly burdensome taxes that the Crown was imposing on the colonies while denying them representation in Parliament. These searches were one of the primary triggers for the American Revolution, and the Fourth Amendment was designed to prevent the new Government from engaging in them by establishing rules under which law enforcement must operate that respect the homes, persons, papers, and effects of individuals by requiring a warrant based on probable cause as well as the circumstances under which someone can be subject to arrest. In other words, the Founders thought a Fourth Amendment was necessary due to the impact that the King’s violation of their rights had on everyone, including people who may have violated the tax laws that the King’s agents were seeking to enforce.
Jazz continues:
And the part of these arguments where Libertarians carp about evidence being found drives me further up the wall. Doug references, “law enforcement acting illegally and using whatever evidence they find however they wish.” Well… yes! Are we really to interpret the Fourth Amendment as meaning that law enforcement must ignore any and all evidence they find unless they already had reason to believe that such evidence would be found? If a cop pulls you over for a busted taillight, strolls up to issue you a ticket and, oh, by the way, notices that there’s a headless corpse in the back seat of your car, do prosecutors have to throw out the existence of the body at your murder trial because they weren’t expecting to find it?
The answer to this question, of course, is no, but it’s not because the Fourth Amendment doesn’t protect the accused in this case. The answer is no because Court’s have long recognized certain exceptions to the Fourth Amendment that recognize the reality of police work and, of course, how the realities of the modern world apply to it. In the hypothetical case that Jazz posits, the initial stop is not illegal since defective equipment on a vehicle is considered a valid reason for a stop in every state in the nation. Additionally, the Supreme Court long ago recognized a “plain view” exception to the warrant requirements of the Fourth Amendment for evidence that is in plain view of an officer, an exception that makes sense given that there really isn’t an expectation of privacy in something that is in plain view. The situation would be different if there had been no valid reason for a stop in the first place, but that would be an entirely different story from the hypothetical posited. This is different from the case at issue in my original post, because everyone conceded that the stop was illegal from the start and that the accused should have been permitted to go about their business.
As it turns out, Jazz and I have had this disagreement before. Three years ago it was over the self incrimination provisions of the Fifth Amendment and Jazz had made a similar argument that these protections were intended to protect the “innocent” rather than the “guilty.” I closed out the post in which I responded to this argument like this:
Finally, I’d note that it’s just as important that “guilty” people have the protections of the Fifth Amendment, along with the others that are supposed to restrain the power of the state during the course of a criminal investigation and trial as it is that someone who is “innocent” have those protections. In our criminal justice system, the prosecution and the police walk into court with tremendous advantages over the average criminal defendant. They have more money,they have access to all kinds of expert witnesses, when the police are questioning someone they can lie with impunity in an effort to trick them into making confessions, and through it all they have the imprimatur of the state behind them. The 4th through 8th Amendments exist to protect the individual charged with a crime, who is we should remember innocent until proven guilty beyond a reasonable doubt, from the overwhelming power of the state, and that’s true whether one is “guilty” or “innocent” on some metaphysical level.
So, the answer to the question “who does the Bill of Rights protect?” is, all of us. And that’s exactly how they were designed to work.
This is as true today as it was three years ago. If we start allowing ourselves to think otherwise, then we will have done more damage to the Bill of Rights than the Supreme Court ever could.
Update: Jazz responds further, as does his Hot Air colleague Taylor Millard.
