Public Housing Searches Ignore the Constitution

By Tracey Maclin. Tracey Maclin is a professor of law at Boston University School of Law. He teaches constitutional law and criminal procedure. | The Christian Science Monitor, May 24, 1994 | Go to article overview

Public Housing Searches Ignore the Constitution


Tracey Maclin. Tracey Maclin is a professor of law at Boston University School of Law. He teaches constitutional law and criminal procedure., The Christian Science Monitor


IN 1760, the British government began a crackdown on illegal imports by American colonists. British customs officers, without judicial warrants or probable cause, searched homes and businesses looking for trade violations. A group of Boston merchants retained the lawyer James Otis to oppose this policy. In words that inspired revolutionary fervor, Otis declared that British search policy "places the liberty of every man in the hands of every petty officer."

Today, in response to a perceived increase in crime and violence, the Clinton administration has proposed police practices reminiscent of 18th-century British search tactics.

Responding to the pleas of residents of a crime-plagued Chicago housing project, the administration announced its support for warrantless searches of public housing apartments, frisking of suspicious persons, and the installation of metal detectors in the lobbies of buildings.

While the administration's proposals may please those calling for more "law and order," the options developed by the Clinton plan are inconsistent with the constitutional principles James Otis helped inspire.

The airwaves are jammed with the sound of politicians calling for more programs to get tough on criminals. Thugs and hoodlums are depriving innocent persons of their rights to safe housing, schools, and neighborhoods. Regarding warrantless sweeps of public housing projects, Housing and Urban Development Secretary Henry Cisneros dismissed the objections of civil liberties lawyers, whose "abstract analysis of people's rights," he said, is "swamped in real life by people's rights being denied."

The secretary's treatment of the Constitution leaves a lot to be desired. The Fourth Amendment guarantees everybody the right to be free from unreasonable searches and seizures by the government. It is a "made in America" freedom - a product of our battle against British law enforcement methods.

Unfortunately, the Fourth Amendment never has been popular, particularly during tough times. During the Prohibition era, the federal government routinely conducted illegal wiretaps to catch suspected bootleggers. In the 1960s and 1970s, state and federal officials continued this unlawful practice against alleged dissidents and political enemies.

The "war on drugs" involves officers going onto buses and trains and demanding to see the identification and tickets of passengers. The Supreme Court has said that police officers - acting without a warrant or any evidence of criminality - do not violate our privacy when they confiscate and search our garbage. News programs regularly show police officers, using sledgehammers and accompanied by menacing dogs, raiding the homes of persons suspected of selling narcotics.

Looking for illegal drugs, a Boston police SWAT team using a no-knock warrant burst into the apartment of a 75-year-old minister, chased the minister through his home, and broke down a bedroom door to grab him.

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