LET'S RETHINK THE FOURTH AMENDMENT

By : Special Agent Frank L. Fahnding, Search & Seizure Department, Federal Bureau of Investigation, Washington, D.C.

In the workplace, we constantly encounter annoyances that make life difficult. During our professional lives, we contend with bothersome supervisors, challenging accounts, deadlines and broken vending machines. We deal with demoralizing performance reviews, late nights and lost weekends. These things come with our jobs because circumstances change. That’s life. And we must strive to adapt.

But all these workplace challenges pale in comparison to the institutional difficulties I face as a law enforcement professional. I have a responsibility to root out child molesters, murderers, car thieves and stock market fraud artists. We all want to catch these scumbags. Yet I can’t do it. Why? Simple: The United States Constitution. To be more precise, the Fourth Amendment to the United States Constitution. Never before has a single sentence both permitted so much crime and made my job so difficult. I would rather deal with a fire-breathing bitch who castrates me daily at the office than to live one more day with this hateful piece of constitutional text.

To catch criminals, you must find evidence. Evidence proves people guilty. That’s just how our system works. In most cases, you know if a guy is guilty if he dresses a certain way, acts a certain way, talks a certain way or if he has something to hide—or gain. But for certain reasons unknown to me, our Nation created a justice system that requires the government to find evidence to prove people guilty. It is not enough to look at a gang member and say: “Oh yeah, it was him; just look at the prison tattoos, the bandana and the torn jeans.” No, you need to call up some witnesses who swear under oath that they saw the guy pull out a knife, smack an old woman in the face and take her lunch money. If you can’t do that, you need to find the knife, find the lunch money and ask the old woman if “this is the man who did this to you.” As you can see, this is a tough business, because it is rarely easy to scrape up evidence.

Our Fourth Amendment makes the job even tougher. It provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath of Affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Now, I don’t speak 18th Century early American English, but this basically means that you can’t search people or places without “probable cause” or a “warrant.” It also means you can’t arrest people without “probable cause” or a “warrant.” You have no idea how difficult this is. Do you know how inconvenient it is to get a warrant? I receive tips about drug dealers all damn day, yet I can’t tell you how many times they have escaped while I try to get a goddamned warrant. Other times, my agents haul crooks into the station for robbery, then some ACLU lesbian barges in claiming we had “no probable cause” and I have to turn them loose. Or a kid says his scoutmaster has nudie pictures on his computer, so I send over some agents to take the computer. Before you know it, some bright-eyed Harvard Law grad shows up at the field office waving the Constitution in my fucking face telling me we “live in a police State.”

What a royal pain in the ass. I’m just trying to do my job and clean up the streets. Nobody likes killers, robbers, child molesters, terrorists, fraud artists, hustlers, pimps, vagabonds, ne’er-do-wells, drunks, hobos, bail-jumpers, parole violators, hit-and-run drivers, anarchists, thugs, deadbeats or gangsters. Yet I can’t effectively jail these assholes because the Fourth Amendment makes me assemble “probable cause” before I can arrest them. Do you know how much crime I could stop if I could just search people at random? Do you know how many drunk drivers I could catch if I could just arrest everyone at a bar with a parking lot? Do you know how many children I could protect if I could watch everyone’s computers at all times, then arrest anyone who logs onto a porn site? Do you know how many drugs I could get off the street if I could just walk into anyone’s home without waiting for some egghead magistrate to give me a warrant? Look, I know who the bad guys are. Let me do my job and arrest them. I can’t be bothered with all this legal mumbo-jumbo.

Yeah, yeah, yeah, I know what you’re going to say: “The Fourth Amendment protects fundamental liberties by requiring governmental officials to assemble evidence before invading citizens’ liberty.” Well guess what? I don’t care about criminals’ liberty. I know a child molester when I see one, and if that means knocking down some doors and performing a couple groundless strip-searches every now and then, by God I’m going to do it. Protecting children means we sometimes need to yield our precious “privacy.” That’s what the critics do not understand. The Fourth Amendment does not guarantee “privacy.” It just forbids “unreasonable searches and seizures.” Frankly, I don’t care about your privacy. If you want to have sex or masturbate, there’s nothing in the Constitution that guarantees you a private place to do it. Go ahead and roll the dice. I’m looking for the bad guys. There is nothing “unreasonable” about that, is there? If you ask me, no search or seizure is “unreasonable” if it is intended to find bad guys. Screw your privacy. I have children to protect.

If we really want to stop crime, we must rethink the Fourth Amendment. Back in 1787, our Founding Fathers had a clear vision in mind when they wrote the Amendment. They wanted to stop British troops from rifling through colonists’ homes and frisking them on the street. Well, we don’t live under British occupation anymore. And the Framers would be horrified to see how modern-day rapists, thugs and drug pushers use the Fourth Amendment to bail themselves out of trouble. The Fourth Amendment was intended to stop the British army, not the American police. Yet this is precisely what has happened. Today, every American police force must sit around waiting for warrants while criminals run rampant across the countryside, terrorizing old ladies, children and handicapped invalids. Our Framers would never have approved this result. I say it’s time to put the law first. It is time to stop defending criminals. And it is time to make my job easier.

During the 1930s, Germany greatly reduced crime by abolishing constitutional liberty guarantees. The German government achieved an unparalleled degree of social tranquility by permitting police forces to do their jobs without interference from courts, lawyers and civil liberties groups. In Germany, private citizens could make private complaints to the police, and the police could make arrests based upon those complaints. They could also freely search suspects’ homes without warrants, then question the suspects based upon the search. In almost every case, they won convictions. Crime plummeted. The German government understood that if someone acts suspiciously, he is probably a criminal. It made no sense to wait for a court to issue a warrant; a swift arrest did the job without the red tape. This is exactly what we should do in America. If we want to really stop drug dealers and smut peddlers, we must abolish constitutional guarantees that shield criminals. Crime in Germany was low in the 1930s because the German government did what had to be done to stop criminals. We can learn from their example.

Privacy fosters crime. True, everyone relishes the idea no can watch them at particular times or in particular places. But criminals exploit privacy to conspire, plot, terrorize, swindle and bag narcotics. The Fourth Amendment perpetuates privacy and protects it. In so doing, it aids the wicked and punishes the good. As a society, we should be less solicitous about criminals and more attuned to the people. The People want less crime, not more. Because the Fourth Amendment leads to more crime, I believe we should abolish it. After all, we live in a democracy. Shouldn’t we give the people what they want once in a while? By abolishing inane warrant requirements, probable cause burdens and expensive lawsuits that penalize police for investigating criminals, we will stop crime before it happens. By eliminating privacy, we can sniff out crime before it becomes crime. Good citizens have a right to know what suspicious citizens are up to. That is why we must completely rethink the Fourth Amendment.

I have a dream that we will one day live in a country that punishes criminals rather than protects them. I have a dream that the police will one day have the power to collect information about all citizens without fearing lawsuits or legal sanction. I have dream that law enforcement officials will have the power to listen in on any suspicious phone conversations without waiting for a magistrate to find “probable cause.” I have a dream that our Nation will protect our children, not allow molesters to withhold evidence from prosecutors and courts. I believe that we can reduce crime in America. We must merely have the courage to abolish outmoded constitutional text. We can do it. We can protect the children. I know that every good citizen would be perfectly willing to cede his privacy in order to stop crime and to protect the children.

There are some things in life more important than privacy. We all want to live in a safe society. We revile murderers, robbers, thieves, pickpockets and stock market pirates. Don’t we have a right to effectively pursue these pernicious evildoers? I believe we do. And by abolishing the Fourth Amendment, we will allow law enforcement professionals to effectively protect us all from them.

On that happy day, my job will be easier. When I can do my job without difficulty, you will sleep better at night—unless you hear a knock at your door at 3 AM. But never fear: Even if you are under investigation, remember that you are doing your part to protect the children. You want to protect the children, don’t you?