Freedom from unreasonable searches and seizures.

The Fourth Amendment to the United States Constitution states in part: "The rights of the people to be secure in their houses, persons, papers, and effects against unreasonable searches and seizures shall not be violated...."

This amendment, along with the nine others which make up the bill of rights, was not passed without careful consideration but rather, it played an integral role in the ratification of the Constitution which appeared to lack the support necessary for passage without the inclusion of these amendments. As such, the freedoms enumerated in this amendment should be seen as key component of the ordered liberty which is the very foundation of our republic. It should be noted that the wording of the amendment suggests a recognition that the right pre-existed the drafting of the amendment.

For all our blustering praise for, and our much touted love of, freedom, I wonder whether we as a people really treasure these freedoms or whether they have dwindled in our heart as well as our courts to the point that they remain mere husks of the once treasured liberties.

These concerns are obviously not original with me. However recent experience has raised these concerns in my mind.

I was in jury trial last week defending a client accused of DUI. (Driving under the influence of alcohol) in Wichita, Kansas. My client had been stopped in a DUI checklane operated by the Sedgwick County Sheriff's Department. During jury selection the attorney for the State inquired as to whether anyone had any objection to law enforcement stopping everyone who drove down a certain road at a certain time in order to check whether they were under the influence of alcohol. I was shocked to find that not one person on the jury panel found it objectionable for government agents to detain people for no reason other than that they happened to drive down a certain road at a certain time. Freedom from unreasonable government seizure of one's person and possessions? Is it valued at all when twelve citizens chosen at random in a fairly conservative Midwestern city find nothing objectionable to the government using their police powers to require that someone be detained and required to submit themselves to government inspection when there is no suspicion of wrong doing and the individual is simply driving down the road minding their own business?

Perhaps it is the reasonableness aspect of the 4th amendment's prohibition on seizures that allows twelve of my fellow citizens to find nothing objectionable about such government intrusion into the lives of the people. Is it not reasonable for the government to try to protect the people from the dangers of having drunk drivers on the road? Perhaps it is. However, the intrusion into the lives of innocents in the name of ferreting out the few law breakers can not be justified as reasonable in the instance of D.U.I. Check lanes.

In the case we are discussing 635 vehicles carrying an unknown number of citizens were detained by law enforcement under threat of force. These detentions were ostensibly designed to deter and apprehend drunk drivers. The check lane had a success rate of 0.635 percent. This success rate is about normal for DUI checkpoints. Is it reasonable for the government to detain citizens of the United States who are minding their own business on the chance that 0.635 of them may be breaking the law? Remember the true success rate is even lower as many of the 635 vehicles which were stopped would have had more than one person in the vehicle. It does not appear reasonable to me and I am astounded that the cross section of our population represented by the jury panel had no objection to such a practice. This is to say nothing about the judge (Rebecca Pilshaw) who should have known better but ruled that the seizure of these 635 or more people was reasonable. Despite testimony that saturation patrols during which drivers are stopped based upon reasonable suspicion that they have committed a traffic in fraction, are more effective in detecting and apprehending drunk drivers.

It appears to me that we have lost our way. Despite our protestations to the contrary, we do not love liberty, at least not as much as we yearn to be protected from every evil both big and small. In a country which prides itself on being a country governed by laws and not men, we have ignored our most fundamental laws as laid forth in the constitution in favor of blind adherence to the lesser laws laid forth by state legislatures and the pens of judges.

In this month of Law Day I implore my fellow citizens to meditate upon the constitution and think about freedom. Do we value it? Or is liberty nothing more than a bumper sticker slogan and the constitution something we uphold as the law of the land so long as the intention of those who would violate it are good?

For the good of this country and all the individuals who live in it, I hope that the spark of freedom still lives in the embers of the American soul and we are still willing to fan that spark into a fire that will sustain us through the darkest and coldest nights. For dark, cold nights will come and, during these times, only the flames of liberty will keep us on course, light our way and protect us from the predators who lurk beyond the protective glow of this fire.

Carl F.A. Maughan
Attorney at Law
Maughan & Maughan LC
200 West Douglas Suite 350
Wichita Kansas 67202
316.264.2023 (tel)
316.264.1919 (fax)