Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.

Benjamin Franklin, A Historical Review of the Constitution and Government of Pennsylvania, from its Origin 289 (1759).

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.

Declaration of Rights, art. X, Virginia Convention of Delegates (June 12, 1776).

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.

U.S. Const. amend. IV.

As almost everyone in the United States knows, a bomb was set off at the Boston Marathon, killing three and wounding more than 260.  The suspects later robbed a convenience store, killed an MIT police officer, were chased, and engaged in a shoot-out with police in Watertown.  One of the two brothers was killed and the other could not be found.

So the police reaction?  Seal off a twenty block area and start door-to-door searches.  Pulling innocent citizens out of their own homes at gunpoint, their hands over their heads, and then search the home without a warrant or any form of probable cause.  The politicians in Massachusetts don’t see a problem with this.  Can this be the same state that produced patriots like John Adams, John Hancock, Paul Revere, and Sam Adams?  Can this be the same state where normal citizens, standing up for their rights, fired the shot heard ’round the world on the green at Lexington?  Why didn’t the people stand up to this?

What’s the reaction in the legal community?  Let us look.

  • Appealingly Brief, by Dan Klau (Warrantless Searches and the Watertown Manhunt).  In his post, he lists several reasons why the searches were not constitutional, and promises more later.
  • Balkinization, by guest Albert Wong (Warrantless Searches of Homes and the Fourth Amendment).  In this law student’s post on the issue, he noted the police could not meet the legal requirements to search, having “no specific or articulable reason to believe that the suspect was present in any given house in the 20-block perimeter….”  He also noted that the terror suspect was found outside of the 20-block area.
  • Popehat, by Clark Bianco (Security Theater, Martial Law, and a Tale that Trumps Every Cop-and-Donut Joke You’ve Ever Heard).  Clark notes that in all other terrorist attacks with gunmen on the loose, the government has never before put the city on lock-down.
  • Probable Cause, by Rick Horowitz (Life in a Post-Constitutional World).  This criminal defense attorney decries the loss of liberty and how this is the transformation of the nation into a police state, where your rights end when police officers tell you they end.
  • Senator Mike Doherty’s website (Doherty Condemns MA Gov. Patrick’s Refusal to Release Terrorists’ Public Assistance Records).  “While law enforcement was searching for Dzhokhar Tsarnaev in Watertown, they had no problem trampling the Fourth Amendment privacy rights of an entire neighborhood of law-abiding citizens as they went door to door pulling innocent families and children out of their homes at gunpoint before conducting warrantless searches of their homes….”  I can’t really summarize that any better, and yes, I now that technically he’s a politician, but he has a J.D.
  • Trial Theory, by Bobby G. Frederick (Wake Up America).  This criminal defense attorney compares what happened in Watertown to the start of a police state, noting that when the police came for the Jews in Germany, they also meekly came out of their houses.
  • The Volokh Conspiracy – Post 1, by Orin Kerr (House-to-House Searches and the Fourth Amendment).  Mr. Kerr notes that the searches turn on reasonableness, and that there are no cases directly on point.  He compares the searches to roadblock cases, citing the recent case in Colorado, United States v. Paetsch, No. 12-cr-00258-WJM, ___ F. Supp. ___, 2012 U.S. Dist. LEXIS 157021, 2012 WL 5213011 (D. Colo. 2012).
  • The Volokh Conspiracy – Post 2, by Eugene Kontorovich (The American Athens Becomes a Prison City).  He points out that it is”not just the civil liberties of terrorists at stake, but also those of millions of innocent civilians” when you shut down an entire city.

Some images and videos, followed by comments.

In this video, you can see the occupants of the home ordered out of the house at gunpoint, told to put their hands on their heads.  Does this look consensual to you?

The news media describes this as “rescuing” the homeowners by pointing rifles at them, pulling them from their house, and then searching it.  It is clear from the citizen comments at 1:30 that these were not consensual searches.  At 1:52, a lady described the police actions as “terrifying.”

“Are you f**king kidding me?”  This comment, at the start of the video, says it all.  There is a whole series from this individual on the searches.

Oh wait, that was from a fictional movie – wasn’t it?

In the past, when faced with tyranny and the oppression of the peoples’ rights, Bostonians stood up and said not here, not now, do not tread on me.  How the people of Boston have changed – and not for the better.