Senate approves

Police Searches and Seizures

Without Warrants. 


Compiled by Dana Davis


The United States Congress is on the verge of passing a bill that would eradicate the Fourth Amendment of the United States Constitution. Article IV of the Bill of Rights states, "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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

In addition, this bill extends its authority to impede upon the First Amendment Right of "Freedom of Speech."

The Methamphetamine Anti-Proliferation Act, "To provide for the punishment of methamphetamine laboratory operators, provide additional resources to combat methamphetamine production, trafficking, and abuse in the United States, and for other purposes," has already passed through the Senate and was being deliberated by the House of Representatives as of press time. In effect, what the provision does is empower the Federal Government, State Government and local law enforcement agencies, to enter private property - homes, businesses, automobiles, etc. for any "criminal searches" without a warrant and without any legal obligation to inform the private property owner that a search and seizure was conducted until months later, if at all. If the bill becomes law, then it would grant the Federal Government power to obtain "intangible" evidence-hard-drive data, photographs or copies made of any documents or family or personal belongings, diaries, etc. - without ever having to inform the owner that their property was searched. If physical evidence was taken then the government could wait up to 90 days later, before having to notify the owner that a secret search of their property ever occurred.

David Kopel, director of research for the Independence Institute, a Colorado think tank focusing on Constitutional issues, said the bill was aimed especially at computer hard drives, which could be copied in an owner' absence and examined without the owner's knowledge. The Senate's version of the bill is (S. 486).  The House Bill is (H.R. 2987).

It's primary initiative is to increase criminal penalties for the sale, production and distribution of methamphetamines, appropriate funds to crack down on "meth labs" where the drug is processed, and fund methamphetamine treatment programs. However, tucked away deep inside the legal jargon of the bill are two provisions which go far beyond the realm of methamphetamine anti-proliferation or even the war on drugs. One measure pertains to police search and seizure, while the other attempts to dictate Internet communication.

Under present law, a property owner must be notified immediately of any possession seized in a criminal search, but the "Notice and Clarification" section of the methamphetamine bill (S. section 301, H.R. section 6) amends U.S. Code by stating, "Section 3103a of title 18, United States Code, is amended by adding at the end the following new sentence: 'With respect to any issuance under this section or any other provision of law (including section 3117 and any rule), any notice required, or that may be required, to be given may be delayed pursuant to the standards, terms, and conditions set forth in section 2705, unless otherwise expressly provided by statute.' A source within the Senate Judiciary committee, speaking on condition of anonymity, admitted that the language in the search and seizure provision "slipped by everybody" in the Senate.

"(The Justice Department) buried it deep in the bill, and nobody noticed until the thing had already passed."

"The Secret Searches measure is so outrageous that it would have no chance of being enacted as a bill on its own, when subjected to public scrutiny and debate," Kopel asserted. "So instead, the DOJ has nestled the Secret Search item deep inside a long bill dealing with methamphetamines." Jeanne Lapatto, spokesperson for the Senate Judiciary Committee and its chairman, Senator Orrin Hatch (R-Utah), said she was unaware of the specific provisions in question. "This is a bipartisan bill," Lapatto said. "During hearings, no one had any problems with the overall goal of the bill, which is curbing the horrible problem of methamphetamines."

Another approach the bill takes to "curbing" methamphetamine usage is by making it a crime to create a hypertext link on the Internet to any site that "directly or indirectly advertises" drug paraphernalia, or distributes information about the processing or purchase of drugs (S. section 203, H.R. section 3). Under the provisions of the act, an Internet service provider, who is notified by a district attorney or representative of the Drug Enforcement Agency, that one of their hosted sites is in violation, would be required to remove the site within 48 hours or face federal criminal penalties.

On top of that, another provision of the bill would make it punishable by up to ten years in prison, "To teach or demonstrate. or to distribute by any means of information pertaining to, in whole or in part, the manufacture of a controlled substance."

U.S. Representative Bob Barr (R-Georgia), member of the House Judiciary Committee, is leading the fight against this bill in the House. Barr asserts that the search and seizure provisions of the bill, "Have nothing to do with methamphetamines," and he believes that had the search and seizure provision been introduced as a separate bill, its chances for passage, "Would be very, very problematic."

"These are not minor changes," Barr added. "These are substantive and far-reaching changes to the criminal law on search and seizure. It's unconscionable that someone would try to sneak these provisions into an unrelated bill."

A spokesperson for the Justice Department, which supports the provisions, declined to comment directly, but did release a recent letter from Assistant Attorney General Robert Ruben to House Judiciary Committee Chairman Henry Hyde (R-Illinois).

In his letter, Ruben praised the bill for providing, "Important and necessary tools for deterring the spread of methamphetamine manufacturing and abuse in our nation."

Speaking on behalf of House, legislative director Chris MacKay said the no-notice provision was necessary for, "Police to perform their job effectively."

According to MacKay, the provision was designed to allow police to search with minimum risk to their safety and without suspects destroying evidence before they arrive, adding, "Anything we can do to win the war on drugs is worth doing."



Tribune Combined Report, using with permission, amongst other sources, information compiled and written by Justin Torres of and David Kopel of the Independence Institute. 


Landis Aden
ARPA - Legislative Division





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