Constitution evolves with technology

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By KIRK HANES

sac-ranger@alamo.edu 

As technology changes, the Supreme Court will evaluate whether law enforcement is intrusive based on search methods, Walter “Bud” Paulissen said Sept. 17 in a Constitution Day lecture.

In the anniversary celebration of the Sept. 17, 1789, signing of the Constitution, Paulissen spoke of the living Constitution and the fact that even modern cases have evolved and been enabled by constitutional amendments.

Paulissen, chief of the major crimes unit in the San Antonio Division of the U.S. attorney’s office and criminal justice professor, presented “Shifting Baselines and Constitution” in the nursing complex.

“The document was created as a framework to answer questions,” he said. “If the government becomes a lawbreaker, it breeds contempt for the law; it invites anarchy.”

The Constitution is a hybrid of powers that leaves many rights to the states and enumerated laws.

The Fourth Amendment grants the right of people to be secure against unreasonable property search without probable cause.

In Miller v. U.S. in 1958, Miller had narcotics on his property but because the police were not permitted to enter his property to search, his arrest was declared unlawful.

Police had no warrant or notice to break into Miller’s property.

In Mapp v. Ohio in 1961, police, without the owner’s permission, searched the property of Dollree Mapp for pornography, including her dresser, a chest of drawers, a closet, suitcases, a photo album, personal papers, basement and a trunk.

When Mapp demanded to see a search warrant, police said she was “belligerent” and arrested her.

This case allowed the state to exclude evidence from a search, which formerly was only allowed in federal cases.

“Nothing can destroy a government more quickly than its failure to observe its own laws or disregard the charter of its own existence,” Paulissen said.

In U.S. v. Leon in 1984, officers executed a search warrant, which the court found was without probable cause, but there was no suppression of evidence in the case because the officers acted in good faith.

In 1987’s New York v. Burger, the case allowed warrantless searches on properties if businesses were given notice the location would be inspected.

This case involved less protection against warranted searches on properties.

Officers inspected automobiles and vehicles at Burger’s business and gave him advance warning. Burger did not object and claimed not to have documents required by statute.

The case decided that a warrantless search was accepted and necessary.

In Kyllo v. U.S. in 2001, police suspected Kyllo had marijuana in a triplex.

From across the street at 3:20 a.m., police directed an infrared detector at the triplex and observed part of the property was hot, which they suspected was caused by grow lights such as those used for growing marijuana plants.

Police found that Kyllo was growing more than 100 marijuana plants.

Kyllo’s attorney argued that use of the detector was a violation of his Fourth Amendment rights, and without the sensor, no probable cause would have existed.

The court declared that the violation of Fourth Amendment rights no longer applied because there was no evidence the police trespassed on Kyllo’s property.

This year, in U.S. v. Antoine Jones, the government indicted Jones and others on drug trafficking, but it was learned that the government used a GPS tracking device on a vehicle registered to Jones’ wife.

The court initially decided the vehicle traveled on public property so Jones shouldn’t have an expectation of privacy, but he argued that without a warrant, the government tracking a GPS was a violation of search and seizure of the Fourth Amendment. The court agreed.

OnStar monitoring was used for Jones’ wife’s vehicle. The Jones case showed as technology evolves, so will the court’s view of protecting rights and analyzing the law and facts.

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