Right To Privacy

Strict Constitutionalism, interpreting the United States Constitution strictly within its initial understanding and context, is a judicial philosophy has increasingly held sway in the United States and is reflected in the judges appointed by both Presidents Bush. This week the United States Supreme Court heard arguments in a case which not only demonstrates that the shortcomings of that philosophical position but the outcome will have major significance to the nature and future of a person’s right of privacy.

The police secretly installed a GPS tracking device to the car of Jones, a man they suspected to be a major drug dealer. For a month from afar and well out of sight the police tracked Jones’ movement. His vehicle became a 24/7 surveillance tool of the police. The police did not need to task teams to watch and follow Jones. After a month the tracking led the police to a large cache of cocaine.

In United States v. Jones, Jones is arguing that the government improperly and without a court issued warrant invaded his privacy. The government argues that they did not need to have a warrant as that provision only pertained to tapping telephone calls, and besides Jones was moving along public roads and functioning various other tasks in other public space.

On the surface the government’s argument seems logical. Using such devices frees up resources and saves the tax payers money. The government no longer needs to task a dozen or more officers to follow suspects in cars and wait outside buildings watching for a suspect to leave. Now the police can place a device on a car, allow a computer to track movements and have one officer review in minutes a day’s worth of movements. One officer could monitor hundreds of people’s movements, instead of it taking many to monitor one.

Forty something years ago when the Supreme Court ruled that wiretaps were required, similar arguments to those of today’s government were used. Today’s Court is facing the ramifications of modern technology and processes that were never dreamed as possible by the original authors of the Constitution. Holding to a strict reading and holding to original context would do a disservice to the Constitution and common sense. The Court was established for the purpose of not as a bulwark against change but as a vehicle to make rulings in light of fundamental principles within an evolving social, political and technological context.

Privacy is a fundamental principle. At issue is whether technology like cell phones, GPS devices, computers, online monitoring, can be used to negate a person’s privacy within a free society. The Court has long held that it is a reasonable expectation for a person to hold that their telephone conversation is private. In its telephone wiretap ruling the Court ruled that as a check against widespread and unwarranted listening to our private conversations. Once again the Court is dealing with these issues. If the Court accepts the government’s position, there is nothing to prevent the government from using our cell phones, OnStar, car engine monitoring devices, GPS devices and other current and future technologies to track our movements second by second. If the government wins, employers and others could then do the same. In short, the Fourth Amendment’s right of privacy will become minimal.

Shameful Police Action

Late March 18 a man was rushing his wife, another family member to a Dallas hospital. They had received word that his mother-in-law was dying. A block from the hospital the roads were somewhat disserted as the man approached an intersection, the light was red but with little traffic. With the flashers on the driver slowed and moved through the intersection once it was clear and proceeded into the hospital entrance.

Dallas police officer, Robert Powell, rushed up behind him with is lights flashing. The driver kept going down the drive and into the parking lot with his flashers still on. As the family got out of the car the officer drew his car and ordered the occupants back into the car. The video clearly indicates that the driver was trying to explain that they needed to get inside to see his wife’s dying mother before she passes. The police officer told him to he could care less what the family needed to do, he wanted them back in the car.

The driver’s wife and her sister ignored the police officer and walked off. The officer demanded the license and insurance. The driver said he was not certain he had the insurance card but he had the registration card. The officer threatened to tow the car and to put the driver in prison. The driver kept trying to explain what was happening but the officer remained cold and unmoved even after a nurse came out to confirm that the mother-in-law as within minutes of dying. Another police officer had not only arrived but suggested to Officer Powell to not issue the ticket and let the driver get inside. Powell who later stated to his department that “I handled everything appropriately” remained unmoved and held the man thirteen minutes as he slowly wrote the ticket, and then lectured the driver on his attitude.

When the driver arrived at his mother-in-law’s bedside he was too late. She had passed away just a few minutes before.

While Powell feels he was justified in his actions, I do not. The context clearly showed that the man was headed for an emergency. His story made sense. If Powell had any doubts, at the very least he could have followed the man inside. I recognize police officers have a tough and stressful job, but that said we need police officers who have enforce the laws with common sense and compassion. Powell’s actions last night serves as an example of what we do not need to see from our law enforcement officers. If anything Powell’s actions and attitude ostracizes the officers from the public by decreasing the respect given to them.

The Dallas Police Department initially put Powell on dispatch duty. The Dallas Chief of Police Kunkel upon hearing about the matter and after it was published in the press appeared before the press earlier today to say that after reviewing the tapes he has suspended his officer. The Chief issued an apology to the family and community as a whole. Chief Kunkel says that Powell will remain suspended without pay until the review is complete and the review could recommend that Powell be dismissed.

Given that the department’s initial reaction was mild and no suspension took place for a week I am left wondering if Chief Kunkel would have taken this action if the driver of the vehicle was not NFL running back Ryan Moats and the matter had not come to the attention of the press.