William and Mary Law School

Pining for the Fourth Amendment

On Saturday, I took a walk around downtown Warsaw to see some sights, get some junk food, and generally goof off. As I walked, I couldn't helpbut notice lots of other young people who looked ... well, let's say "alternative." Lots of grungy t-shirts, flip flops, and tattoos. A disproportionate number of them wore their hair in dreadlocks. Not to mention of course the conspicuous, universally recognizable green leaf blazened on most of their t-shirts and hats, and on flags they carried. I figured there was probably some kind of rally going on - marijuana is completely illegal here - and didn't think much else of it. In college towns all across America, pro-pot rallies are kind of common, right? What's not common in the US, however, and fortunately so, is what followed.

Police officers stopped people at random and submitting them to a full search. "Terry v. Ohio" is the U.S. Supreme Court case governing public stop-and-frisk in the US. "Terry" tells us that police officers can stop individuals if the officers have reasonable, articulable suspicion that crime is afoot, and they can conduct a limited search for weapons. Basically, as Proffessor Paul Marcus demonstrated in class, a "Terry" search means open palms, outside of clothing and pockets, and only for weapons. A series of "Terry" stops was NOT what was happening in downtown Warsaw on Saturday. These police officers were searching with grabbing palms, reaching into pockets without consent, and pulling out whatever they found. As I looked on, police officers made a few of the rally-goers lift up their shirts and stretch out their clothing to show what was underneath. Uh ... what? 

Let me back up a litte: I knew what these (mostly) kids were up to. They knew what they were up to. And I'd bet money that a good number of them had some "bad stuff" on them, to use Professor Marcus' terminology. But aside from some pro-drug content being expressed on their clothing and accessories, there was no sign to me that they were doing anything illegal (like smoking pot) or that they were about to do anything illegal. No signs of intoxication that I could see. No smell of any controlled substance wafting through the air. Aside from their numbers, they could have been a group of kids going about their regular business. I couldn't come up with any reasonable, articulable suspicion that they were up to anything illegal, and I doubt the police, if pressed, could have come up with anything either, aside from, "they looked like pot smokers." The only reason to suspect them of anything at all was their obvious, public advocacy for the legalization of marijuana. 

I found a duo of cops who were taking a break from the random searches. I cautiously asked them what was going on, and one confirmed what I had guessed.There was a pro-marijuana rally going on, and the police had been dispatched for -his words - "public safety." I tried not to look skeptical, but I doubt I succeeded. The rally-goers were acting very peacibly, and, as I said, were neither obviously intoxicated or smoking in public. On the other hand, I saw conduct much more likely to jeopardize public safety the very next day in Warsaw: after the Dortmund soccer team (with three Polish players) lost Sunday's European soccer championship game to Bayern Munich, there were small drunken riots in the streets. But the marijuana advocates on Saturday? What public safety issue were they creating that warranted intrusive searches? None that I could see, but enough of a threat, obviously, for the police to want to search them at random. I saw officers search other young-looking people who wore no pro-pot clothes and seemingly had nothing to do with the marijuana demonstrators. They just happened to look too young and cool in the wrong part of Warsaw that day. 

I do value the Fourth Amendment protections afforded me by the Constitution. I valued them even more after Professor Marcus' criminal procedure class. But nothing, I think, could have made my appreciation for the Constitutional rights we enjoy in the U.S. more tangible than what I saw on Saturday. It wasn't agregious. There was no police brutality nor was any riot gear used. The searches conducted by the police may have even seemed very professional to the persons being searched. It may have been completely reasonable to them, given their culture and history. But to me, those searches were an affront. It's a good thing they didn't want to search me - I don't know how I would have reacted, other than with indignation at having my Fourth Amendment rights violated. A losing argument here, but it shouldn't be. 

Having thought about what I saw Saturday, I'm kind of torn as to my reaction. Half of methinks, "Wow, how lucky I am to be an American. How lucky we are to enjoy the rights we do!" The other half thinks the first half is an idiot. Not that we don't enjoy exceptional personal rights in the United States, because we do. But first, we're not lucky. These rights are simultaneously hard-fought (hello, Memorial Day) and taken for granted. And second, by "taken for granted," I don't mean that we should think about our Constitutional Rights every day, be thankful that we have them, or pity the rest of the world, etc. None of that is especially productive or useful. We have no reason to pity anyone; Poland is a democratic nation, an ally of the US, and knows better than modern Americans do what it means to be subject to both fascism and communism. Democratic Poland will make choices that best suit Poland, just as we try to do in the United States (when our leaders manage to shelve bickering and accomplish something besides stonewalling, that is). What I do mean by "taken for granted" is that our rights are fragile. Putting our thumbs behind our suspenders and being satisfied that we're free won't amount to a hill of beans if we don't continually strive for progress, stability, and strength. Yes, in the U.S. our Fourth Amendment rights are well established - but are they really secure? Just because I've never been unreasonably stopped and frisked doesn't mean it never happens. Quite the opposite, in fact, it happens too often. And I don't want to get started talking about the Fourth Amendment and Internet privacy, or this would be way more than you'd want to read and have nothing to do with Poland. But suffice it to say that yes, we have rights, but the future of those rights is far from written in stone. Plus, not everyone in the U.S. enjoys all guaranteed rights equally. Being in Poland has made me both appreciate what we have in America and reminded me of the challenges we face in realizing our potential. We are exceptional, yes, but so is every nation in its own way. In describing what I saw Saturday, I do not wish it to be seen as derisive or critical. It is, rather, comparative. And in that comparison, America does not emerge unscathed. The simple bottom line is that we can all learn from each other. The world is an increasingly smaller and smaller place. The only question going forward is, how will we use our newfound proximity to make the world a better place for all of us?

On a lighter note, here's a few photos of downtown Warsaw, sans police or demonstrators.

 

A rainy side street

 

 

Tourists touring Old Town