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When courts apply 1+1=3 to the Constitution

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The Bill of Rights. (From the public domain.)

When I applied to law school, I was excited about the prospect of overlapping my then-future law career with my obsession with human rights work. I expected that part of my law studies would involve learning the language of the oppressive enemy, so that I could more successfully battle that enemy.

That enemy turned out not to be a person or group of persons intending on harming others, but instead was a huge tumor on the body of law often developed by well-meaning people at best, and those wanting to protect their own and some of the worst power, privilege, and prejudices at worst. This dose of healthy cynicism helped me keep my eyes on the prize of learning critical legal skills and information in law school, to get my law degree and to pass the bar, and to land where I could do good with my law license.

Nevertheless, before law school, I was largely unprepared to learn how far courts go to trample on basic individual rights. I knew that courts had set up all sorts of legal fictions and distortions of words and sensibility to uphold systems that kept slavery in place, permitted statutory racial segregation, and allowed subjugation of women. In law school, I also learned how even the Supreme Court found ways to uphold laws criminalizing adult consensual oral sex, to give police the green light to search areas within an arrestee’s lunge and grasp even after the arrestee is handcuffed and unable to lunge and grasp, and to allow all sorts of censorship to the point that one radio station in the 1980’s  decided not to air Allen Ginsberg‘s masterpiece Howl, due to the chill of the risk of litigation costs and fines over any effort by the Federal Communications Commission to seek indecency-related fines for airing the poem.

One of the latest sad judicial treatments of the Constitution comes from Maryland’s intermediate court in the form of Hamel v. State, ___ Md. App. ___ (March 6, 2008). Hamel says police have the right to search even locked gloveboxes incident to a driver’s arrest. In this instance, Hamel was arrested for drunk driving. During a search of his person incident to arrest, a gun holster was found on him. The police searched his car, and found no incriminating items, but then removed his key from the ignition, opened the locked glove box, and found a handgun, for which he was convicted.

Hamel points to other courts that have upheld searches of locked gloveboxes incident to arrest, and points out that Maryland’s constitutional equivalent of the Fourth Amendment provides no more protection than the federal Fourth Amendment.

Last May, I blogged that police need probable cause to search a car trunk, even when a search incident to arrest is allowed of the car’s passenger compartment. If Hamel is not overturned by Maryland’s highest court (I am skeptical whether the United States Supreme Court would reverse Hamel), I would not be surprised if Maryland trial courts and possibly Maryland’s Court of Special Appeals will ultimately use Hamel to justify trunk searches incident to arrest. This runaway train of search incident to arrest must be stopped in its tracks and be limited, at worst, to searches of passenger compartments incident to arrest of drivers, not to include locked glove boxes and other locked containers.

Avoiding judicial shredding of the Constitution must be considered when voting for anyone with the power to nominate and confirm judicial candidates. Not that I expect Hillary Clinton to be a big champion of Constitutional rights (hope springs eternal, though), and Obama seems too much of an unknown in that respect, I expect that McCain will appoint judges who are, on balance, more unfriendly to Constitutional rights than Clinton and Obama. The federal courts have already been packed for seven years by George Bush II with too many judges who are unfriendly to Constitutional rights. For McCain to take over the White House under such circumstances likely will make today’s federal judge lineup look like a paradise. Jon Katz.