Florida joins in kicking 4th Amendment's dead horse

In an apparent rush to further destroy the already largely lifeless Fourth Amendment [1], Florida law enforcement has joined other states in implementing "no refusal" DUI checkpoints.  These checkpoints, in addition to already being constitutionally questionable, add the extra layer of immediate forced blood draws after a warrant is issued by the on-site judge.

The right to protection against unlawful search and seizure be damned.

While I would normally make the argument that the states, and therefore by extension local law enforcement, are not subject to the same constitutional restraint as the federal government, the Supreme Court has applied the Fourth Amendment to the states by way of the Fourteenth Amendment's 'Due Process Clause' in the Mapp v. Ohio case of 1961 [2].

This is, unfortunately, another attempt by government to overstep its constitutional obligations in the name of "public safety." The same case has been made for decades with regard to gun rights - notwithstanding the protections afforded to the People in the Second Amendment, the Congress has implemented gun control legislation on a substantial scale, even to the degree of banning automatic firearms in the National Firearms Act (NFA) of 1934 [3], and to some degree further in the ill-named Firearm Owners Protection Act (FOPA) signed by President Reagan in 1984.  Ironically, the FOPA further restricted the sale of automatic firearms sold in compliance with the NFA only to weapons manufactured prior to the date of the act, or prior to 1986.  As a result, all automatic firearms in the US which are available for legal purchase by the public were manufactured at least 25 years ago.

To its credit, however, the FOPA included provisions to protect firearm dealers against abusive searches and audits conducted by the Bureau of Alcohol, Tobacco, and Firearms (ATF), prevented the requirement of federal gun registration (although some states can and do have registries, which is a different matter), restricted record keeping of ammunition purchases, and removed a former restriction on long gun sales across state lines [4].

As I have already published at least one lengthy piece regarding Congressional authority to regulate interstate commerce, it seems appropriate to comment here that the Congress asserting regulatory authority due to the effect that long gun sales across state lines has on interstate commerce is dubious - especially in light of the Second Amendment.  Congress, in this situation, could indeed regulate the commerce taking place in the interstate sale, but since when did the term regulate become synonymous with ban?

Getting back to the DUI checkpoint story, the entire concept of checkpoints is to protect the safety of the public.  Drunk driving is indeed a serious matter than claims far too many lives each year, particularly around the New Year celebrations.  But is casting a net of suspicion over all drivers on a road at any given time to pick out the one or two who may be intoxicated an appropriate exercise of authority?  As far as I am concerned, the answer is no.

The Fourth Amendment protections again unlawful search and seizure are also further expanded and clarified in the introductory clause of the amendment, which states that the purpose of protecting against unreasonable search is explicitly for "The right of the people to be secure in their persons".  How can the average, law abiding driver be "secure in their person" if they are subjected to suspicion of drunk driving (i.e. a search) by a police officer stopping them at a sobriety checkpoint, especially in the complete absence of probable cause?  They can't.

Random searches of a driver's "person," in order to comply with the absolute protections afforded by the Fourth Amendment, must be by warrant issued resulting from a reasonable suspicion of intoxication.  The language of the amendment makes this absolutely clear:

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.  (Emphasis mine.)

Public safety plays no role in the execution of a lawful search.  In order for liberty to be maintained, the People must be absolutely secure in their persons and property from unlawful intrusion, even if public safety suffers.

This conclusion is sure to arouse at least two additional questions:

1.  Does this mean that all DUI action by law enforcement is unconstitutional?  Absolutely not.  Law enforcement is welcome to pull over any driver who is speeding, abruptly changing lanes, or who appears unable to safely operate the vehicle, but probable cause must be present before lawful contact with the driver can occur.  Anything less is a violation of the driver's constitutional rights.

2.  Does this mean that we should allow public safety to be sacrificed in the name of "protecting someone's rights?"  To some degree, yes.  However, if the penalties imposed for drunk driving were severe (i.e. lengthy prison terms) rather than lax, drunk driving wouldn't be as much of a problem to begin with.  Punish the offender, not the law abiding citizen.

In this particular story, the fact that the DUI checkpoints have a judge present on site is immaterial.  A judge's presence does not give the police probable cause, and therefore a warrant cannot be lawfully issued ("no Warrants shall issue, but upon probable cause").  Refusing to submit to a breathalyzer is not probable cause.

Further, if we are going to simply make judges available on the spot to issue warrants whenever law enforcement wants to do anything, why even require warrants?  Why not simply deputize all police officers as non-commissioned judges?

The People's liberties are at stake and fading fast.  If we fail to assert these liberties for ourselves or depend on government to protect them for us, we will quickly find ourselves without any liberties at all.  After all, if we're willing to tolerate the violation of constitutional protections against unlawful search and seizure to protect ourselves from drunk drivers, what violations are we willing to tolerate next in the name of public safety?

Benjamin Franklin put it best:

They that can give up essential liberty to obtain a little temporary safety deserve neither safety nor liberty.

In love of liberty,
The Bulletproof Patriot