Thoughts on the Fourth on the Fourth; readers help

In Mays v. State, 959 So. 2d 216 (2007), posted here, a regular correspondent sent me the dissent (and even came up with the title of this post). I admit that I do not always read the dissents because it just takes too much time. But this dissent needs to be shared. The case held that no reasonable suspicion is required to run wants or warrants during a stop. The concurring opinion of Justice Pariente is concerned with the loss of rights:

Indeed, I expressed my view in Golphin that an individual’s consent to provide an officer with identification does not necessarily include consent for the officer to retain the identification to run a warrants check. See id. at 1201 n.18. This is consistent with the United States Supreme Court’s pronouncement that “in the absence of any basis for suspecting a person of misconduct, the balance between the public interest and the right to personal security and privacy tilts in favor of freedom from police interference.” Brown v. Texas, 443 U.S. 47, 52 (1979).

I also reiterate my concern “about our freedom as Americans to lawfully move about without attracting the unwanted and coercive attention of the authorities.” Golphin, 945 So. 2d at 1202 (Pariente J., concurring in result only). Troubling statistics released by the New York City Police Department show that the number of people stopped on the streets in that city increased from 97,296 in 2002 to 508,540 in 2006. See Al Baker, 6-Month Study to Review “Stop and Frisks” by New York Police, N.Y. Times, March 1, 2007, at B1.fn1 A special report recently released by the Department of Justice shows that 43.5 million United States residents had face-to-face contact with the police in 2005. See Bureau of Justice Statistics, U.S. Dep’t of Justice, Contacts between Police and the Public, 2005 1 (2007).

I remain concerned that little by little we continue to chip away at the protections of the Fourth Amendment that are designed to protect our citizens from unreasonable searches and seizures. This is not a theoretical problem but rather a tangible issue that goes to the core of the constitutional rights we as a country hold so dear. (ANSTEAD and QUINCE, JJ., concur.)

fn1 The New York City Police Department has commissioned an independent study of the way it stops people on the street that will focus on the role that race plays in these police-citizen encounters. See id. I previously noted that “one of the most disturbing features of suspicionless warrants checks is that the intrusion tends to fall disproportionately on particular ethnic and racial groups.” Golphin, 945 So. 2d at 1202 n.20 (Pariente, J., concurring in result only).

Another reader sent me a quote from NBC’s Law & Order (official site; imdb link), a judge to ADA McCoy: “It’s the Fourth amendment, Mr. McCoy, not the three and three-quarters.”

We are enduring the boiling frog phenomenon: a frog placed in hot or boiling water will try to escape. If the frog is in water that is warming, the frog will not notice the temperature change and will be boiled alive. Such is the development of the Fourth Amendment.

One of my favorites, which I stumbled on in researching a brief years ago, stays on the margin of this site from United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989):

Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.

Now, read the following post.