March 12, 2013
Legislatively Speaking: “The right of the People…against unreasonable searches and seizures”
By Senator Lena C. Taylor
Quietly moving through Legislature is Senate Bill 40, a bill by Senator Joe Leibham and Rep. Mike Endsley, both Republicans from Sheboygan. According to the non-partisan Legislative Reference Bureau, SB 40 states that any person on extended supervision, probation or parole (i.e. “on paper”) “is subject to having his or her person, residence, and any property under his or her control searched by a law enforcement officer at any time if the officer reasonably suspects that the person is committing, is about to commit, or has committed a crime or a violation of a condition of probation or release.” In common words, the cops get to search you and your residence anytime if THEY believe you have or are about to do wrong.
There is no doubt that people who have committed a crime are subject to greater scrutiny and restricted liberty when they are on paper. That is part of the punishment and the rehabilitation for the violation of the public trust. Current law allows your supervision agent (the probation agent) to search an offender’s premises or person at any time with the consent of the Corrections department regional chief. That is an acceptable standard for supervision. SB 40 says that any police officer or county sheriff can enter your home without a warrant for any suspicion they may have.
We all know the famous Bill of Rights in the Constitution. They are the first ten amendments that guarantee civil liberties against the overreach of the government. The fourth amendment states, “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 particularity describing the place to be searched, and the persons or things to be seized.”
SB 40 not only affects the privacy and rights of the offenders on supervision but also the people that have pledged to support them. Most offenders attempting to reenter society need the help of others, often times living with family and friends. The way this bill is constructed, a family member’s privacy could be violated and the rights denied because they chose to help their family. Imagine your uncle’s house is searched as he tries to help your cousin restart a better life. In no way does that choice to help your family invalidate your constitutional protections against the government.
But in addition, SB 40 assumes one great thing – police will always be in the right about their suspicions. Of course at times they are not. For many in Milwaukee, this attitude to just “trust the police” is not well received given recent events. This is why warrants must be issued by judges in current law. We place the threshold to decide whether or not to violate the privacy of a home or person on the decision of a judge, not with the police. Reasonable suspicion and probable cause of course allow police the power to search and detain under current law. But they do not allow search without that cause. So we are left to wonder why this change is needed for offenders. What is it about the current law which stops a law enforcement officer from searching or preventing a crime from happening?
There is no legitimate answer to that question. This bill removes any involvement of the judiciary to issue a warrant before the search is ever conducted. Go back up and look at the text of the fourth amendment above. Does it seem right that we should allow a no warrant search despite the plain language of the Constitution? It does not to me.
You can get your copy of SB 40 here: https://docs.legis.wisconsin.gov/2013/proposals/sb40. Call your senator and representative and tell them to support the constitution and vote against SB 40.