The efforts by the Federal government to win the War on Drugs has created a systematic erosion in the Fourth Amendment protections against illegal searches and seizures by police.
In this first article in a new series by Historydojo, we will explore how the War on Drugs carved out a loophole in the Fourth Amendment for police to exploit in their search for illegal drugs, most frequently the drug marijuana.
This revelation was first made know in Michelle Alexander’s book, The New Jim Crow: Mass Incarceration in the Age of Color Blindness. Please find it for sale here, and support Historydojo by going through our site to purchase your copy. It is a book that will change your life.
The Fourth Amendment was originally convinced in reaction the the British, government and their use of general search warrants. British officers, looking for rebel weapons in cities like Boston or Philadelphia, would section off entire neighborhoods and search every house. these general warrants were considered oppressive, and an infringement on the freedom of innocent, law abiding citizens. In the Bill of Rights, added to the Constitution after is founding, the Framers made clear that they wanted these types of abuses to stop.
They wrote in the Fourth Amendment,
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
According to the Legal Information Institute of the Cornell School of Law:
The Fourth Amendment originally enforced the notion that “each man’s home is his castle”, secure from unreasonable searches and seizures of property by the government. It protects against arbitrary arrests, and is the basis of the law regarding search warrants, stop-and-frisk, safety inspections, wiretaps, and other forms of surveillance, as well as being central to many other criminal law topics and to privacy law.
But as part of the War on Drugs, the Drug Enforcement Agency launched Operation Pipeline. This program was targeted at increasing the training of police to become front line fighters in the War on Drugs. It has destroyed the protection of the the Fourth Amendment against illegal searches and seizures.
The DEA encourages police to violate the rights of motorists in an effort to find even small amounts of drugs.
Michelle Alexander wrote about this program in The New Jim Crow:
“The DEA lanced Operation Pipeline in 1984 as part of the Reagan administration’s roll-out of the War on Drugs. The federal program, administered by over tree hundred state and local law enforcement agencies, trains state and local law enforcement officers to use pretext stops and consent searches on a large scale for drug interdiction.”1
This leads to the second reason why you have no Fourth Amendment:
2. Police act deceptively to search for drugs by making it appear that they are just enforcing traffic laws.
“Officers learn, among other things, how to use a minor traffic violation as a pretext to stop someone, how to lengthen a routine traffic stop and leverage it into a search for drugs, how to obtain consent from a reluctant motorist, and how to use drug sniffing dogs to obtain probable cause.”2
The federal government has encouraged local police to pull people over for seemingly minor or even non existent traffic violations in order to search for drugs. these are known as pretext stops. The pretext, or reason behind, the stop is an innocuous reason. A broken tail light, a sudden lane change, not stopping long enough at a stop sigh, could all be used as the reason for the stop. Once stopped, however, the search for drugs begins.
Why would police want to do this?
The Federal government has offered local police departments federal funds for increases in their drug arrests. Note that the funds are not for drug convictions, which are much more difficult to secure, but just for arresting more people. The increase in unjustified arrests leads to increased money for local police.
If you want to increase the frequency of something,
create a financial incentive for it.
But this is only for bad people right? The government would never come after you, a law abiding American, of course.
3. The Federal government assumes that everyone ins transporting drugs in their car.
“By 2000, the DEA had directly trained more than 25,000 officers in forty eight states in Pipeline tactics and helped develop training programs for countless municipal and state law enforcement agencies.”3
The reaction to this enormous effort to search everywhere for drugs may seem at first to be acceptable. After all, if people are not transporting drugs they shouldn’t be worried about pretext stops and consent searches, right?
Wrong. the Framers believed in the principle of innocent until proven guilty. That is why the need for probable cause in the search warrants described in the Fourth Amendment is so important. The government is not working under the principle of probable cause when it trains tens of thousands of officers to stop people and search them. It is assuming their guilt and acting on it.
This assumption is the opposite of the Fourth Amendment.
4. Operation Pipeline consistently fails to discover drugs.
“It has been estimated that Pipeline stops yield no illegal drugs. One study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation and that 98 percent of task force searches during traffic stops are discretionary searches in which the officer searches the car with the driver’s verbal “consent” but has no legal authority to do so.”4
If you tried something that failed 99 out of every one hundred attempts, you might stop doing it or change the way it is done. Not the Federal government! Operation Pipeline routinely searches people without probably cause and fails to discover anything illegal. The violation isn’t even balanced by a successful rate of drug seizures. It is a systematic violation of the Fourth Amendment that continues because people have been trained not to question police and government authority.
This is not what the Founders did, nor is it what they wanted when they wrote the fourth Amendment. The Founding Fathers challenged government authority. They fought for people to be free from government intrusion into their lives. They wrote the Constitution to limit government. Today all of those ideas have been thrown away by a public lulled into submission by appeals to blind patriotism and rabid partisanship.
I tell my students that they will not be reminded of their rights when others are taking them away. Police do not remind people that they can say no to consent searches. I tell my students that unless you know your rights you can not truly be free. Ignorance of your rights is a condition of mental slavery.
The Founders felt that an educated citizenry was the best defense against tyranny. I hope that my students will be able to defend themselves with this knowledge of Operation Pipeline and restore the Fourth Amendment one day.
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- Scott Hensen, Flawed Enforcement: Why Drug Task Force Highway Interdiction Violates Rights, Wastes Tax Dollars, and Fails to Limit The Availability of Drugs in Texas. (Austin: American Civil Liberties Union – Texas Chapter, 2004), 9, www.acl.org/racialjustice/racialprofiling/155897pub20040519.html