The Fourth Amendment covers everyone ... including suspected criminals

It’s completely understandable why “law and order” conservatives are defending the U.S. Supreme Court’s decision in the Utah v. Strieff case. Edward Strieff Jr. had a (traffic) warrant out for his arrest when he was stopped by a cop in 2006, and drugs were found on his person. Jazz went as far as to write here the Fourth Amendment wasn’t created to protect the guilty. He went even further on it today by writing he couldn’t figure out “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.”

What’s interesting is the Utah Supreme Court actually agreed with Strieff that his search violated the Fourth Amendment. Justices wrote Strieff was “unlawfully detained,” which resulted in the outstanding warrant being discovered, along with the drug paraphernalia. It looks like they wouldn’t have had a problem with the stop if the officer had seen Strieff enter, then exit, the house. Since the cop only saw Strieff enter, that’s why the Utah Supreme Court ruled the way it did, before SCOTUS decided otherwise.

There’s another reason why conservatives shouldn’t be celebrating the Utah v. Strieff decision: over-criminalization. We live in a time where Americans commit an average of three felonies a day (without even knowing it), and this is only on the federal level. State and local governments also pass laws which make no sense at all, except they just don’t want people to do certain stuff. This was something Right on Crime analyst Joe Luppino-Esposito told me last weekend during FreedomWorks’ #justiceforall blogger summit:

“Then there’s this idea of over-criminalization sort of broadly, both local and, you know, state and federal of things that we’re making crimes that we don’t want really want to be actual criminal, we really, really think someone shouldn’t do it, so we’ll make it a crime.”

Luppino-Esposito used the difference between “original crime” of murder or rape, and things which are bad because “we say they’re bad (think speeding, not using a blinker, or carrying a gun).” One classic example of this is Shaneen Allen, the Pennsylvania mother who faced three years in a New Jersey prison for carrying a loaded gun in her car during a traffic stop. Allen had a CCW permit, but New Jersey requires guns to be unloaded and has a ban on hollow-point bullets. No one’s life, liberty, or property was threatened, but New Jersey politicians viewed having a loaded gun as “bad,” so they made it a crime. It’s true Allen was eventually pardoned but it’s doubtful this would have happened if there hadn’t been such an uproar. There’s no guarantee this would have happened if Governor Chris Christie hadn’t been planning a presidential run, or if a gun-grabbing Democrat had held the governor’s mansion.

Another example of the dangers of over-criminalization is a story from Guardians of the Galaxy director James Gunn. Gunn posted on Facebook how he had to take his dog to the vet because it was having seizures from ingesting marijuana…marijuana Gunn didn’t even know was in his Atlanta house.

“No,” I told her. “I don’t smoke pot.” And that’s true – I don’t do any drugs, or even drink alcohol.

“Because that’s where I’ve seen symptoms like this,” she said…Both of my assistants live in the house with me….

However, in that moment, my other assistant texted back and said that his ex-girlfriend had left some edibles – weed-infused chocolate coffee beans – in his nightstand. He has been packing to go and he threw the coffee beans into a trash bag – which Von Spears had torn through and gotten to the coffee beans.

Gunn could have been charged (and might be, depending on the mood of the prosecutor) for violations of Georgia’s anti-cruelty provision, even though he had no idea the weed-infused chocolate coffee beans were in his house. The only reason he posted the story was to point out how people need to be more careful where they store their weed. Does this mean the police should be searching Gunn or his roomies for drugs each time officers come across because of a Facebook post? Absolutely not! Say your son or daughter or roommate scores some weed, sneaks it into the house, and your home gets raided by the cops. Should you have to forfeit your home because your child had drugs, without your knowledge? Absolutely not, but that’s what Philadelphia-area prosecutors tried to do in 2014.

This is why Utah vs. Strieff decision is so important because of how the government is criminalizing everything from ripping the tag off a mattress to sitting in the seat by subway car door if you’re not disabled in Washington, DC. It means if you get pulled over for maybe doing a weird turn in New Jersey, and a cop thinks you might be a criminal, and then sees your loaded gun in your glove compartment, you’re gonna be arrested. If you walk out of a New Hampshire movie theater before noon, you can be searched because it’s illegal to show a movie before 2 p.m. The Strieff decision + over-criminalization could end up meaning no one is secure in their persons because we’re all basically criminals. Which is a problem, and why justice reform (and groups which push it) is sorely needed.