Can the Police Search My Home for a Bomber?
Today in Watertown, Massachusetts, law enforcement officials are going from house to house with trained SWAT team snipers drawing a bead on any occupants and instructing those occupants to exit the houses so the police can enter and search the premises.
Is this constitutional?
Contrary to this article posted on Slate.com, constitutional rights do not evaporate whenever the government decides they would be inconvenient. Police have no right to expel citizens from their homes or to engage in warrantless searches of those homes just because the government declares that an emergency exists.
The Fourth Amendment makes clear that people have a right for their persons and homes to be secure against unreasonable searches and seizures, and that judges must not issue warrants permitting the government to intrude upon someone's home unless there is a clear reason to believe that a specific thing or person will be found in a specific, identified location. The Washington Constitution is even more protective of citizens' rights, stating that "no person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Courts have, by-and-large, allowed certain exceptions to these constitutional rules, such as if the police see a potential criminal enter someone's property and there is no time to obtain the warrant that would otherwise be necessary to follow the suspect. This is known as the "hot pursuit" doctrine. Courts also usually recognize an exception if police believe that intruding on a citizen's property is necessary to assist someone threatened with immediate harm or injury.
But these exceptions do not apply to the circumstances in Watertown. The police do not know where the suspected criminal is, and they have no reason to believe that he is in any specific house in Watertown. Neither do they have any reason to believe that any specific citizen of Watertown is in immediate danger of harm or injury. And, importantly, they also have no reason to believe that any specific citizen is harboring the suspect in their home.
Thus, this entire operation is one gigantic fishing expedition - and that is precisely the sort of thing forbidden by the Fourth Amendment and Article I, section 7 of the Washington Constitution.
The police can warn people to be on the lookout for the suspect. They can ask for permission to search a citizen's home. But unless they have clear reason to believe that the suspect is on a specific property and that he might escape in the time necessary to obtain a warrant, the police cannot constitutionally force citizens out of their homes or engage in a warrantless search of those homes.
I can hear some people now saying, "But surely these are special circumstances..."
They are not, and it is extremely dangerous for the very idea of constitutional liberty to presume that citizens may be stripped of their rights whenever the government declares it necessary. History teaches us that one exception breeds another, and that pattern will continue until the exceptions destroy the rule. Once the principles of liberty have been sacrificed, it is exceptionally difficult for them to be recovered. We must remain vigilant and steadfast in our protection of our rights, and we must not allow fear to lead us to abandon those rights.