Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: WEDNESDAY, April 27, 1994 TAG: 9404280010
SECTION: EDITORIAL PAGE: A-9 EDITION: METRO
SOURCE: Cal Thomas
DATELINE: LENGTH: Medium
Is any American not frustrated by the crime wave that continues to plague the country and particularly its poor? But President Clinton's proposal to ask public-housing tenants to waive their Fourth Amendment rights for the purpose of searching for and seizing guns may be a case of the ``cure'' causing more harm than the ailment.
The president's plan was revealed in his April 16 radio address. He has directed the attorney general and the secretary of housing and urban development to devise a national policy using warrantless police sweeps. HUD Secretary Henry Cisneros has suggested that the sweeps can occur where tenants give written consent. The searches, he says, would be ``subjective judgments'' based on a judge's order under circumstances of ``exigency.''
Acting Associate Attorney General Bill Bryson elaborated: ``What we're saying here is that we think we can have an effective crime-prevention and apprehension program without departing from standard Fourth Amendment law. We're not trying to create new law here. What we're really trying to do is to avoid having everything tested in court, avoid having long delays while programs get precleared, in effect, by federal and state courts.''
On this one, I concur with the American Civil Liberties Union and Senate Judiciary Committee Chairman Joseph Biden. Both have strong reservations about the president's proposals. Only days ago, Clinton was criticizing the Singapore government for favoring the social order over individual rights in the Michael Fay ``caning'' case. Now he seems to be suggesting a similar approach to controlling crime in America.
Among the many matters to worry about in the president's proposal is whether an inalienable constitutional right, once waived, can be reclaimed. Several court rulings have indicated it cannot. In Carter vs. Sea Land Services Inc. (1987), a federal appeals court stated: ``Parties may waive even fundamental rights ... including the right to be free from unreasonable searches and seizures. ... Once a right, even a fundamental right, is knowingly and voluntarily waived, a party has no constitutional right to recant at will'' (emphasis mine).
No court has explicitly held that even a limited constitutional right to rescind a waiver exists. Although the Supreme Court and some individual justices have suggested that a defendant should be permitted to revoke a waiver, none of the opinions discloses whether the right to rescind a waiver is constitutional.
There is also the probability some less-educated public-housing tenants would not fully understand the consequences of waiving a constitutional right. The government's promise of a quick solution to crime may be as tempting as the ``easy money'' of a winning lottery ticket.
Furthermore, according to a federal appeals court, ``Both case authority and scholarly commentary indicate that a condition requiring an applicant for a governmental benefit to forgo a constitutional right is unlawful if the condition is not rationally related to the benefit conferred.'' Constitutional attorney John Whitehead notes, ``The question must then be asked, is the broad sacrifice of government tenants' constitutional right against search and seizure rationally related to the government's overall war on drugs?''
If Clinton's policy is implemented, a precedent will have been created. Warrantless searches put government's ever-growing big foot in the door and opens it to the possibility of other government intrusions into private homes. No one knows the parameters of the search consents. Unless strictly limited, it is possible that government's search for guns could also provide for warrantless searches related to suspected child abuse, income-tax fraud, social-services concerns and a lot more - without any additional waivers.
The Founders wrote the Fourth Amendment to protect us from the invasive power of government. The administration's proposal is a serious threat to a fundamental right that will not be reclaimed once it is lost.
Los Angeles Times Syndicate
by CNB