Over at Concurring Opinions they are discussing the recent federal court decision allowing the New York City police's searching of subway patterns. I think this is a frightening decision, and I agree with law prof Daniel Solove's explanations for why.
Meanwhile, law prof Jason Mazzone has argued it's a good decision, and today said it was consistent with the notion of "democratic searches and seizures."
"The basic idea is this: if a search or seizure is authorized by a majority of the community—the best evidence being that it occurs pursuant to a validly enacted law—and the members of that majority are themselves subject to the search or seizure, then the search or seizure is reasonable."
I disagree strenuously, and commented:
"I think this reasoning essentially destroys the 4th amendment entirely.Take, for example, selling heroin. The majority of people think that selling heroin is wrong. The majority of people don't do it. But because they have democratically agreed, with their majority, that selling heroin is wrong,
(a) they now are subject to being searched for evidence pertaining to heroin dealing
(b) and they heroin dealers are subject to being searched as well.
Ah, then you say, but only the heroin dealers will get caught!
But
(a) Anyone subject to any search loses their privacy, regardless of whether or not they had anything to conceal (and what if instead of finding heroin, the police then found marijuana - has the majority decided that it is equally wrongful?), and
(b) The heroin dealers get caught with their heroin and go to jail.
But I didn't think that the American sense of jurisprudence allowed for that kind of quid pro quo - even criminals are entitled to privacy protections. The 4th Amendment does not read, 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated UNLESS THEY ARE DOING SOMETHING WRONG.'
The 'reasonable' language of the 4th Amendment applies to whether there is a reasonable suspicion of THAT person doing something wrong. Not that there is a reasonable suspicion that someone, somewhere is doing something wrong. Which seems to be what your rationale, and indeed that of the New York police, seems to be based upon."
(Yeah, I know the last sentence reads poorly, but that's how I posted it, darnit.)
Perhaps it's a bad plan to go up against a law prof with degrees from Harvard, Stanford, Yale... But if he's right, and I'm wrong, then there is a serious lack of freedom in the United States that needs to be addressed.