November 5, 2018

Warrantless searches threaten the rights of all Americans

By Timothy R. Snowball Attorney

What are the proper limits on government power? For some complicated legal questions, the answer is not always easy. But for others, like the operation of the Fourth Amendment to the U.S. Constitution, a literal line has been drawn over which agents of the government cannot permissibly pass.

The Fourth Amendment protects individuals and their property from unreasonable searches and seizures by police and other government agents. The Founders specifically singled out homes as worthy of special protection. As Sir Edward Coke once famously put it: “The house of every one is to him as his castle and fortress.” Protection for private homes from government invasions formed one of the primary bases for the American Revolution from Great Britain. Generally speaking, the Fourth Amendment has been interpreted to require, except for several narrowly defined and limited exceptions, that the government must secure a warrant based upon probable cause and issued by a neutral judge in order to search your home or property. But beginning in the 1960s up to the present day, the protection of the Fourth Amendment has all too often fallen at the wayside in favor of more and more government power.

And the threat continues to this day.

Imagine one quiet morning you are eating breakfast in your own home. Minding your own business and not bothering anyone. Suddenly, there are several loud raps on your door. Rightly startled, you approach the door apprehensively, open it a crack, and carefully peer out. On your doorstep are several heavily armed government agents in bulletproof armor demanding entry into your home to conduct a search. They threaten you if you do not comply. They do not have a warrant and tell you that they do not need one. Aghast, you ask them what you have done and why they think they have the right to enter your home and search without a warrant.

Their answer: Because you own certain kinds of birds. That’s right. Under constitutionally questionable federal and California rules, the U.S. and California departments of Fish & Wildlife claim the power to enter onto the private property and into the homes of licensed falconers to conduct warrantless unreasonable searches. Recently, Pacific Legal Foundation filed a federal civil rights lawsuit challenging this blatant government abuse. What is next? Warrantless searches related to your dogs? Cats? Goldfish?

And the problem just keeps on growing. Across the United States more and more rules have been passed that operate to violate the Fourth Amendment rights of Americans. And the reach of these unconstitutional warrantless searches are by no means restricted to falconers. Just this year California lawmakers attacked the future of homeschools in the state by classifying  homes in which parents educate their children as “private schools” subject to warrantless searches by government officials to ensure compliance with certain building codes. So whether it is zoning ordinances, home schools, or government agents who just really, really want inside your house, we are all potentially vulnerable to this type of government abuse.

When legislators or bureaucrats enact laws that burden or break our constitutional rights, they often cite concerns related to the “health, safety, and welfare.” But these amorphous categories are often just an excuse to bend or break our most cherished constitutional guarantees. If “health and safety” is the standard to hold government power in check, then what is the limiting principle for the purposes of the Fourth Amendment?

There isn’t one.

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Peter Stavrianoudakis, et al., v. United States Department of Fish & Wildlife and California Department of Fish & Wildlife

Peter Stavrianoudakis is a longtime licensed falconer in California who just wants to do what people have been doing for thousands of years—raise and train falcons. But state and federal regulations have become so restrictive, he and fellow falconers around the country are left to choose between their falcons or their constitutional rights. Pacific Legal Foundation has filed a federal lawsuit on behalf of Peter and other falconers, as well as the American Falconry Conservancy, challenging the constitutionality of falconry regulations enforced by both the California and U.S. Fish and Wildlife Departments.

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