Everyone is entitled to his own opinion, but not to his own facts.
--Daniel Patrick Moynihan

April 17, 2012

Legalizing Drugs Would Bolster Constitutional Rights

By David K. Shipler

If Secret Service agents hadn’t infatuated the American press last weekend by cavorting with prostitutes in Colombia, there might have been space and time for newspapers and broadcasters to dwell on a more significant event that took place, also behind closed doors, at the Latin American summit. It was the discussion about partially legalizing narcotics to undermine the lethal drug cartels that have turned parts of the hemisphere into war zones.

This is not about to happen, obviously. As a politician in an election year, President Obama naturally rejected the idea. But the leaders—pushed by President Juan Manuel Santos of Colombia, President Felipe Calderon of Mexico, and President Otto Perez Molina of Guatemala—did order up a study by the Organization of American States. Desperation about drug violence has driven the decriminalization proposal to the highest levels of certain governments.

The arguments for and against legalization are familiar, but there is one in favor that has rarely been made: The war on drugs has also been a war on the U.S. Constitution, especially the Fourth Amendment’s guarantee of “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”


With rising concern over drug use, the courts have grown permissive in recent decades, carving out expanding exceptions to the Fourth Amendment’s requirement of probable cause before law enforcement may invade private space. Special police units roam darkened streets to frisk innocent pedestrians, stop drivers, and rummage through vehicles that look suspicious. Judges are easily persuaded to issue warrants for house searches based on dubious statements by sleazy informants, sometimes authorizing police break-ins without knocking, which have caused deaths even where no drugs have been found.

That most of this happens in poor, minority neighborhoods means that the political class never sees or feels the indignity of the violation. Mitt Romney said nothing about it Monday when he spoke about “liberty” in Philadelphia to the Tea Party, whose notion of liberty seems restricted to property rights. Neither reporters nor supporters ask Romney or Obama about the broader liberties contained in the Bill of Rights—a silence that will have to be endured throughout the campaign, given the country’s prevailing attitude: I’m willing to give up your rights for my safety.

Safety is a squishy concept, however. Outlawing narcotics has not brought safety. Guns and gangs terrorize parts of many American communities as they battle over turf, settle scores, and fight to dominate their underground markets. Prisons are crowded with drug offenders, mostly low-level dealers or users whose arrests ruin lives but make no impact on the drug trade. “More than 60 percent of the people in prison are now racial and ethnic minorities,” reports the Sentencing Project. “Two-thirds of all persons in prison for drug offenses are people of color.” Pedestrian frisks, vehicle searches, and sting operations by undercover officers do not target middle-class white neighborhoods where drugs are also prevalent.

Furthermore, the constitutional damage is immense. The license that courts have given police has reached the point where a respected federal judge in Washington, D.C., Paul L. Friedman, can say, “I don’t think that there’s much left of the Fourth Amendment in criminal law.”

Some of the latitude makes sense. Evidence in a vehicle can be driven away, so the original Prohibition—against liquor—prompted the Supreme Court in 1925 to approve searching a suspected bootlegger’s car without waiting for a warrant if officers had probable cause to believe that criminal evidence would be found. Similarly, for fast-moving encounters that were often confusing and dangerous, the justices loosened the probable cause requirement, finding instead in 1968 that if “reasonable grounds” or “reasonable suspicion” existed to believe that someone was armed, officers without a warrant could, on their own authority, stop and frisk him on the street. This was justified by safety considerations, for the cops’ own protection.

But bad law seemed to follow good as prohibition, shifting from alcohol to drugs, induced the courts to continue chipping away at the Fourth Amendment. For a vehicle search, probable cause could be satisfied by seeing criminal evidence in “plain view” through a window. That was followed by “plain odor” (smelling marijuana) during a traffic stop, or “plain feel” (a bag of crack) during a pedestrian pat-down. Furtive movements, running from police, even just being in a high-narcotics area could add to the “totality of circumstances” justifying a warrantless search. The mobility rationale did a vanishing act as the Supreme Court ruled that no warrant was necessary to search packages seized from vehicles, even though they could be held in police custody until a warrant could be obtained.

Furthermore, seven years after requiring that suspects be read their Miranda rights to silence and to legal counsel under the Fifth and Sixth Amendments, the Court went the other way on the Fourth Amendment, refusing to require police to advise citizens of their right to refuse a search.

Consequently, many people simply don’t know that they can say no. Hardly anyone refused during the nights I spent with narcotics and gun squads in mean neighborhoods of Washington, D.C. When uniformed officers approached, young black men standing on street corners simply lifted their T-shirts to show that no guns were tucked in their waistbands. Nobody had to ask them to do so. Drivers freely consented to searches of their vehicles, and looked puzzled when I asked them why they’d agreed. The head of a narcotics unit told me that he got consent to search bags from nearly all passengers he questioned leaving trains at Union Station—including drug couriers, who didn’t know they had the right to refuse. Once in court, defendants may argue that they didn’t consent, but since there’s no requirement equivalent to Miranda, it’s their word against the cops’, and judges tend to believe the cops.

Constitutional problems can always be avoided by repealing laws, and the extreme hypothesis can be undesirable: If there were no gun control, for example, you’d have no gun squad searching people and cars looking for guns in tough D.C. neighborhoods. No drug prohibition, no unjustified searches for drugs.

But would the cost of legalizing drugs outweigh the cost of outlawing them? The strict prohibition has not prevented the U.S. from becoming the world’s largest cocaine market. Would free-flowing narcotics really worsen social decay and personal devastation beyond the current wreckage?

When making the calculation, the civil liberties damage ought to be added to the balance sheet. My hunch is that the political class would begin to consider the question if drug violence spilled into whiter, more affluent neighborhoods, and if police officers began frisking suburban residents in front of their manicured lawns.

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