- The Washington Times - Tuesday, April 4, 2000

Thank heavens for the United States Supreme Court's defense of a shrinking domain of privacy.

Its unanimous ruling in Florida vs. J.L. (March 28, 2000) brought rare measured judgment to the nation's anti-gun crusade over the protest of President Clinton's Justice Department. The Fourth Amendment's prohibition of unreasonable searches and seizures, the high court lectured, prohibits the police from stopping and frisking an individual for a gun when the justification pivots solely on an anonymous tip.

A police state salutes the motto "crime control uber alles"; a free state pays homage to the right to be left alone. The U.S. Supreme Court, an independent check on popular passions and whims, is indispensable to drawing a sharp constitutional boundary between the two, and to keeping the nation in the free state camp.

Crime or fear is easily exploited by clever and cunning politicians to arouse the public behind the urgency of drastic countermeasures. One day communism is the bogeyman. The next day drug trafficking and abuse is the bete noir. Then illegal aliens, terrorism and money laundering make high-profile appearances on the anti-crime stage. The current klieg lights flash on guns, as though Moses had inadvertently forgotten a codicil to the Ten Commandments: "Thou shall not buy, sell, possess, or use any firearm."

The J.L. case speaks volumes on that propensity for government overreaching. An anonymous caller reported to the Miami-Dade Police that a young black male (J.L.),standing at a particular bus stop and outfitted in a plaid shirt, was carrying a gun. Nothing was known of the informant. Two officers traveled to the bus stop, espied three black males, one wearing a plaid shirt. But nary a clue of crime or unusual movements was witnessed. One officer detained and frisked J.L., and discovered a gun. The other gratuitously followed suit with the other two blacks (against whom no allegations had been made), and found nothing.

J.L., who was just shy of 16 at the time of the frisk, was charged under Florida state law with carrying a concealed firearm without a license and possessing a firearm while under 18. He moved to suppress the gun as evidence because obtained in violation of the Fourth Amendment. The Florida Supreme Court agreed, and the U.S. Supreme Court, speaking through Justice Ruth Bader Ginsberg, affirmed. The police had run roughshod over J.L.'s constitutionally protected liberty in their seeming quest for anti-gun accolades. (Why otherwise would one officer have frisked J.L.'s two companions, unjustified by even an anonymous tip?)

In Terry vs. Adams (1968), Justice Ginsberg explained, the court held that reasonable suspicion criminal activity may be afoot and that a suspect may be armed and dangerous justifies a police stop and frisk for weapons. But reasonable suspicion demands more than a subjective hunch or vagrant, highly questionable anonymous tips. Anonymity itself is dubious because concealment of the identity of the informer generally prevents a criminal prosecution for making a false police report. All history, exemplified by the Spanish Inquisition, casts deep suspicion on the reliability of anonymous testimony because of the prevalence of personal spite, bigotry or vendettas. In some cases, nevertheless, a highly detailed tip suggestive of special inside knowledge of criminality, if further corroborated by police observations, bestow sufficient credibility on an anonymous source to justify a stop and frisk of the suspect.

In J.L., however, the tip information gave the police officers nothing objective to justify a belief that the suspect was carrying a gun when they arrived at the bus stop. Thus, it fell short of what the Constitution requires to disturb a citizen's liberty and dignity.

The State of Florida and President Clinton's Justice Department clamored for a "firearms" exception to the Fourth Amendment as expounded in Terry. They pleaded in substance: "Isn't it better that countless citizens bow to whimsical or spiteful police intrusions than that any firearms violation escape punishment?" Justice Ginsberg's negative answer is unanswerable: "[A]n automatic firearms exception to our established reliability analysis would rove too far. Such an exception would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target's unlawful carriage of a gun. Nor could one securely confine such an exception to allegations involving firearms."

What the police, politicians and the populace are wont to forget is that the privacy cherished by the Fourth Amendment inevitably blunts law enforcement, just like the Fifth Amendment's ban on confessions obtained by torture or other coercion. Crime control is important to citizen safety and liberty, but so are controls on the crime controllers. The Fourth Amendment right to privacy the right to be left alone by government should not be readily sacrificed to accommodate the latest criminal justice fad. The price in community suspicions and divisions and the promotion of docile, conformist behavior would be ruinous to our robust, unguarded and freedom-loving culture.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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