Of Merchant Ships and Crack-Sellers' Cars High Court Upholds Leniency of Search-and-Seizure Laws Dating Back To

Article excerpt

How is an automobile seized in the 1990s similar to a British merchant ship in the 1790s?

In the 1790s and early 1800s, US customs agents were empowered to search and seize goods, and eventually the trading ships carrying them, without first obtaining a warrant. They could do so if the ships were suspected of smuggling cargo into the country without paying required duty.

A majority of US Supreme Court justices agreed this week that because such laws were passed by early members of Congress shortly after the Bill of Rights was written, the Constitution must also permit present-day law-enforcement officials the same latitude. At issue before the court was a 1993 Florida case involving the car of an alleged cocaine dealer, Tyvessel White. Police seized the car from a public parking lot under a state forfeiture law without obtaining a warrant. When they searched the car, also without a warrant, they found in the ashtray two pieces of crack cocaine that they used to convict Mr. White of narcotics possession. At issue before the high court was whether Florida police needed a court-authorized warrant before seizing and searching White's car. History as a yardstick Under the Fourth Amendment of the US Constitution, law-enforcement officials are required to obtain a warrant issued by a neutral judge prior to searching or seizing private property. But there are long- standing exceptions to this fundamental requirement. Some of those exceptions date to colonial times. White's lawyers challenged the warrantless seizure and search of their client's car, saying police had ample time to obtain a warrant, but failed to do so. The Florida Supreme Court agreed, and threw out White's conviction. On Monday, by a 7 to 2 vote, a majority of the justices reversed the Florida court. They used history to support their decision. "In deciding whether a challenged governmental action violates the {Fourth} Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed {more than 200 years ago}," wrote Justice Clarence Thomas in the majority opinion. Such inquiries into the intent and apparent wishes of the nation's founding fathers are common among conservative members of the high court. This so-called jurisprudence of original intent is aimed at rolling back the perceived liberal excesses of earlier Supreme Court decisions while restoring the nation to what conservatives view as the proper balance of constitutional safeguards. But not all analysts see it that way. Steven Kessler, a New York lawyer and forfeiture expert, says the Supreme Court decision fails to place early US laws in proper perspective. "Whose ships were we seizing? Britain's," he says. "We were at war with that country. We just broke away from them." Mr. Kessler says that the ship-seizure law was the only British forfeiture statute retained by the new American nation. …


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