Higher security may face constitutional test

JEFFERSON CITY, Mo. -- As government steps up security measures and expands law enforcement powers to combat terrorism, it's a sure bet some those actions will raise serious constitutional questions.

As has been the case throughout the nation's history, government's use of power often clashes with Fourth Amendment protections against unreasonable searches of citizens and seizure of their property. The judicial system, with the U.S. Supreme Court at its pinnacle, is ultimately left to draw the constitutional boundaries.

"The Fourth Amendment test is always one of balancing intrusion upon private individuals against legitimate government interests," said Cape Girardeau County Prosecuting Attorney Morley Swingle.

The key word in the amendment is "unreasonable." When determining if a governmental action is justified, courts may decide that officials acted reasonably under the circumstances.

But sometimes the line between reasonable and unreasonable is fuzzy. For example, police roadblocks to check motorists for signs of intoxication have been upheld.

"The court ruled a stop with no reasonable suspicion does not violate the Fourth Amendment because the interest in protecting against drunk drivers is great, and the intrusion is small," Swingle said.

However, the Supreme Court ruled this year that an identical tactic where the purpose was to find vehicles carrying illegal drugs did not pass constitutional muster. Swingle said that while authorities have a legitimate interest in stopping the transportation of drugs, the court found blanket traffic stops to be overly intrusive because there is no imminent threat to motorists as is the case with intoxicated drivers.

Predicts more leeway

In the years to come, Swingle predicts courts will give police more leeway in conducting searches following the events of Sept. 11.

"When you look at the present case, the balancing test probably is going to be in favor of more stringent security checks on people going into buildings or planes because the government interest is so huge," Swingle said.

In Missouri, access to public buildings has been restricted in recent weeks and new security measures implemented, such as requiring visitors to pass through metal detectors and allowing belongings to be searched. Gov. Bob Holden ordered the changes and is considering further steps aimed at protecting Missourians.

Jerry Nachtigal, Holden's spokesman, said the governor and his security advisors are being careful not to cross any constitutional lines.

"It is safe to say pains are being taken to ensure the law is followed," he said. "I think the governor is focused on how to best protect citizens without unduly imposing restrictive security measures. I hope a year from now we can look back and see no one's constitutional rights have been violated."

Past cases may not help

Missouri Supreme Court Chief Justice Stephen N. Limbaugh Jr. said that during his time on the bench the court has ruled on many cases that raised Fourth Amendment questions. Those generally involved criminal cases and may not have much bearing on the present situation, Limbaugh said.

"I don't know that we've dealt with any cases trying to address limits on security precautions on government buildings or government property; most of those things aren't contested," Limbaugh said. "It would be absurd to contest using metal detectors in courthouses, for example, because that is obviously a reasonable search and seizure because a person submits themselves voluntarily."

With Congress considering expanded wiretapping authority for federal law enforcement, Limbaugh said some new Fourth Amendment case law will likely be written.

"Electronic surveillance measures will be a hot issues in search and seizure law in coming years," Limbaugh said. "That is one area of procedure that will be ripe for court decisions."

Swingle agreed that use of electronic eavesdropping devices and other yet-to-be-conceived law enforcement tactics will test Fourth Amendment limitations. How far courts allow authorities to go will depend much on the national climate, Swingle said.

"I don't think we can predict, at this point, because we don't know what other atrocities might happen," Swingle said. "Like the Fourth Amendment has for 200 years, this area of law develops on a case-by-case basis."

mpowers@semissourian.com

(573) 635-4608