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Our rights, already seriously eroded, in jeopardy once again

Time for courts to uphold protections

Editor’s note: The commentary below is one in a continuing series that addresses the question: “How Does the Constitution Keep Up with the Times?” The essay is part of the Constitutionally Speaking civic engagement initiative, which is aimed at educating New Hampshire citizens young and old about constitutional issues and promoting the reintroduction of meaningful civics education into New Hampshire classrooms. The yearlong pilot project is a collaboration of the New Hampshire Supreme Court Society, the New Hampshire Humanities Council, and the University of New Hampshire School of Law. For more information, go to

The U.S. Supreme Court is hearing several Fourth Amendment cases this term that are of concern to civil libertarians because they seek to expand police powers at the expense of privacy rights and the presumption of innocence. A couple of key legal concepts will help you understand the basis for our apprehension. Generally, the police cannot search you or your container (such as luggage or purse) or your car or home without a warrant. Obtaining a warrant requires the police to prepare an affidavit that outlines the facts and circumstances that demonstrate the search will disclose credible evidence of a crime. The affidavit is presented to a neutral magistrate, usually a judge, who issues a warrant if he or she is convinced there is probable cause to believe that the search will uncover evidence of a crime. Four cases before the Supreme Court this year have the potential to seriously erode the warrant requirement.

Must the police obtain a warrant before they ask a medical technician to forcibly stick a needle into the arm of a suspected drunken driver and draw his blood? That is the issue in Missouri v. McNeely. The government argues that the alcohol in one’s bloodstream dissipates quickly so there is no time to get a warrant; each minute is critical to preserving necessary evidence of criminal conduct. The defense argues that obtaining a warrant is no longer the time-consuming process it once was. No longer is it necessary for the police to write out an affidavit in support of a request for a search warrant and then deliver it to a judge for signature. Nowadays an officer can apply for a warrant in minutes using a cell phone and laptop. The bottom line for civil libertarians is that unless there is a compelling reason against it, a neutral magistrate should evaluate the facts and circumstances before the police can subject a person to an intrusive procedure.

Should the state be able to take a DNA sample from an individual without a warrant just because he is accused of a crime? That is the question in Maryland v. King. The government argues that DNA is merely the 21st century equivalent of a fingerprint, which the police routinely acquire from arrested individuals. Civil libertarians disagree. They argue that it is one thing to allow the state to take DNA samples from people who have been convicted of a crime because those individuals either have admitted guilt in a court of law, or have been found to be guilty beyond a reasonable doubt. But people who are merely accused of a crime are presumed to be innocent. There is a massive amount of highly sensitive, deeply personal information embodied in a DNA sample and the government should not be allowed to obtain all that information, and use it however it deems fit, without the safeguards involved in the criminal process.

The government can use dogs to sniff for drugs in your luggage at airports, or in your car after a valid stop. But can it also use narcotic detection dogs to sniff your home? In Florida v. Jardines, the Florida Supreme Court ruled that the home is fundamentally different than luggage or a car, both of which are in public places with a lower expectation of privacy in them. The sanctity of the home is a foundational principal of American Law and cannot be breached absent probable cause to believe that evidence of a crime will be found within it. A narcotic detection dog discerns evidence that the police could not otherwise access without physically intruding into the house. Therefore, the police need probable cause and a warrant before they can bring dogs onto a person’s private property to search for evidence of drugs.

Just because a narcotic detection dog “alerts” at a car, does that mean that the police now have reasonable suspicion for a full blown search of the vehicle? Based on last month’s Supreme Court ruling in Florida v. Harris, apparently so. The justices unanimously reversed a lower court ruling that reflected the civil libertarian view that the dog could be alerting to many things, not just narcotics, and allowing the police to search based solely on an untrustworthy technique would lead to too many intrusions of innocent people. The police are continually developing ingenious new ways of detecting evidence of crime – some of which are reliable, others of which are not. If we simply accept the results of these new detecting devices and technologies without asking if they are reliable, then we will negate the warrant requirement altogether.

In the names of the “war on drugs” and the “terrorist threat” our right to be free from unreasonable search and seizure has already been seriously eroded. I hope the pendulum will start swinging in the other direction and that the court will uphold the sanctity of the Fourth Amendment. After all, it is the only protection citizens have against unscrupulous or overzealous law enforcement.

(Barbara Keshen is the staff attorney for the New Hampshire Civil Liberties Union. She previously served as a public defender, representing indigent defendants charged with homicide and other serious felonies, and as an assistant attorney general in the Criminal Justice Bureau of the New Hampshire Attorney General’s Office.)

Legacy Comments1

I'm quite perplexed, Ms. Keshan. You claim to be an attorney for the NH Civil Liberties Union. Therefore, I assume you're concerned with protecting our civil liberties. Yet, I read your column in its entirety and I saw not one mention of the current administrations Drone program. Isn't this the major civil liberties issue of our time???

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