Boston Strong

I elected to not write on this topic again until I’d had time to let the emotions of the attack, aftermath, manhunt, and capture of the surviving suspect currently in custody.  My reasons were twofold –  to avoid presenting factually incorrect information and to give myself time to think over the implications and outcomes of the event from the initiation of the attack until now.

First, I find it disturbing how readily people were willing to cheer what has the potential to become the evisceration of the Fourth Amendment to the US Constitution.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment IV, US Constitution

The argument could be made that the officers and other law enforcement personnel requested permission to search, but there is a significant legal problem with the way those searches were conducted.  When a dozen (or more) armed law enforcement officers are standing nearby, including some with their weapons trained on you, when you open the door or look out the window the voluntary nature of consent has been violated.  That is duress in base form as the threat of imminent force is present and being brandished openly.

Duress

Restraint or danger, actually inflicted or impending, which is sufficient in severity or apprehension to deprive a person of free choice, destroy his volition, or obtain consent only in form.

Lectric Law Library

While I am certain that many offered voluntary consent, the mere presence of so many heavily armed and armored personnel of questionable identity (local police, state police, FBI, and National Guard appeared to be wearing similar military clothing and body armor) and with vehicles that have prior-to-now been only used in war zones such as Baghdad or Kandahar is tacit and outright duress under force.  Those voluntary consents were nullified by the show of force outside and are invalid.  I can’t speak as to what happened if searches were denied by invoking the fourth amendment, but in the face of so many rifle barrels, I hesitate to believe more than a handful remembered that they had that right in the first place.

My other observation is that the lockdown (shelter-in-place order) and concurrent door-to-door neighborhood sweep and manhunt failed to locate the suspect.  The suspect was not even within the searched zone so the manhunt had zero probability of success (more on this in a minute).  The suspect was located and captured only after the lockdown was lifted.

Officers may make warrantless searches and seizures if they find that exigent circumstances exist and that they have probable cause. An exigent circumstance exists when an officer has a compelling need to take official action but lacks the time needed to get a warrant. Determining probable cause in this context requires a consideration of the totality of the circumstances to determine whether an officer acted in accord with a high probability that the search would turn up contraband or evidence.

Search & Seizure Law

Did exigent circumstances exist to allow for the search for the suspect? Absolutely.  Was there a high probability that the suspect would be found in the area where the manhunt and door-to-door searches was conducted?  It is true after-the-fact that the answer is no.

Have we ever had bombings in this country?  Yes. The first such terrorist-style attack occurred in 1886.  Since then, there have been dozens of bombings in the United States, and while the attack on Boston was terrible for those injured and the families who lost loved ones, the attack itself and the threat to public safety posed by the suspect(s) after their identities were known paled in comparison to Timothy McVeigh (who killed 169 and injured 675 in 1995), the culprits of the Wall Street bombing in 1920 (30 killed, 300 injured), or even of the infamous Unabomber, Theodore Kaczynski (3 killed, 23 wounded over 17 years of bombings).  Moreover, those prior attacks never merited the willful (even if temporary) surrender of citizens’ rights that occurred recently in Boston.  The manhunt scale and scope was unprecedented.  The shelter-in-place order was unprecedented as they have historically been used for wide-scale chemical spills and similar disasters, not fugitive searches.

I don’t want to stomp on anyone’s toes with this, I’m just trying to point out that all of the good intentions in the world don’t matter when you start shredding citizens’ rights.  What worries me even more is when those same citizens cheer it on, either ignoring or failing to understand when a watershed moment has occurred.

For more on this topic, I suggest John Whitehead’s commentary.

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