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State v. Boyea12/1/2000
rofessor Steiker observed, " ndividual liberties entail social costs. . . . Nowhere is this more true than with the Fourth Amendment. . . . Particularly in times of rampant violent crime or other serious threats to security, the inhibiting power of the Fourth Amendment can seem 'too extravagant to endure.'" C. Steiker, Second Thoughts about First Principles, 107 Harv. L. Rev. 820, 820 (1994) (citation omitted).
As she points out, the claimants of the Fourth Amendment's protections often "appear less than sympathetic." Id. at 820-21. It was for this very reason that the proponents of the Bill of Rights insisted that those rights be enshrined in the Constitution and set out of the reach of political tides. In submitting the amendments to Congress, Madison "declared that, since tyranny originated at the locus of power, a government based on popular consent would be more likely to become the majority's instrument for oppressing the minority than the reverse. . . . [Thus,] the right against unreasonable search and seizure was intended to restrain 'the body of the people operating by the majority against the minority.'" Cuddihy, supra, at 1473-74. As Professor Strossen put it, " he Bill of Rights itself manifests the Framers' considered judgment that the rights it guarantees presumptively, if not conclusively, outweigh the competing societal concerns in all cases." N. Strossen, The Fourth Amendment in the Balance: Accurately Setting the Scales through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. Rev. 1173, 1186 (1988). The Amendment is designed not to collapse at the cry of "public safety" but to hold the government to a requirement of reasonableness even when the government argues it is acting for public safety. It is the inherent nature of police work to deal with dangerous situations; if danger becomes a justification for dispensing with the requirement of reliability, then there will be nothing left of the Fourth Amendment.
I am authorized to state that Justice Dooley joins in this dissent.
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