The other day I took at look at the Supreme Court case of Utah v. Strieff and the uproar among Libertarians over how the decision supposedly gutted the Fourth Amendment. You can read the original for the details, but the case centered around a person who was pulled over after leaving a home which was under surveillance for suspected drug activity and subsequently found to have an outstanding warrant. A search then revealed that he had drugs on him and he was arrested and convicted. The Supremes held that the valid (though unrelated) warrant made the search reasonable and the conviction was upheld.

Much of my ire over the protests surrounding this decision arose from my friend Doug Mataconis and his claims that the decision drove a stake through the heart of the Fourth Amendment. He clearly didn’t care for my interpretation of the Bill of Rights as being primarily designed to protect the innocent from the overbearing power of the government, and went on to opine at length on the subject again yesterday. After a long speech about the Founders and the history of British and American law, he dredges up some lofty quotes.

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.”

Yes, yes… we all know the baseline assumption. Everyone is innocent until proven guilty. Here’s something else we all know: the reality is that we don’t treat everyone as if they are as innocent as everyone else when there’s clear evidence to the contrary and the police can’t afford to do that either. Doug makes the point that in the specific Strieff case, “everyone conceded that the stop was illegal from the start and that the accused should have been permitted to go about their business.”

I checked with a couple of attorneys last night and apparently the validity of a stop varies from state to state and, depending on the circumstances, from case to case. The house in question was under surveillance because the police had received an apparently credible report that there was illegal drug activity taking place there. It seems to me that persons seen coming and going from such a location during the course of the investigation would be, at a minimum, worth checking out to see if they were part of the suspected activity. How Mr. Strieff failed to meet that bar for reasonable suspicion remains a mystery to me, but even if that’s the standard in Utah it still seems illogical to place the blame on the police for asking a question.

Let’s consider the rest of the arrest scenario, though. We’ve already established that Mr. Strieff did, in fact, have a valid warrant out for his arrest. If the cops had seen him anywhere on the streets, such as being parked outside a convenience store, and run his plates or checked his ID they would have discovered that fact, just as they did during this arrest. And upon discovering that he was wanted, they could have searched him as part of the arrest, yes? At that point they still would have discovered that he had illegal drugs on him and charged him for that as well. How is this any different?

If we must get a bit more crude about the result of this case, the cops had the right guy from the beginning. There was drug activity going on at the house just as reported. Strieff was apparently involved in that activity because they found the drugs on him. At this point we have crossed over from ensuring that the Fourth Amendment is in force and protecting the innocent from undue harassment by the government and into the territory of using it as a dodge to try to get a guilty person off the hook. Is that really the intention of the Fourth Amendment? To make it as difficult as possible for law enforcement to obtain a conviction and to earn a fee for defense attorneys? I know Doug is hanging his hat on the entire premise of everyone is innocent until proven guilty, but Strieff was guilty in practice if not by legal definition from the moment they pulled the drugs out of his pocket. And he was already wanted by the cops for something else, no matter how minor the previous offense may have been. This just smells of abuse of our constitutional rights to escape prosecution rather than a question of ensuring everyone’s rights are protected.

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