But Upon Probable Cause
Posted on November 20, 2010 | By wally
Profiling is as American as apple pie and football played with a brown pointy ball. Profiling has its basis both in common sense and our Constitution’s 4th Amendment.
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.
The 4th Amendment should protect us from our government acting upon us without probable cause. It does not ensure that there will be no intrusion into our personal space, just no unreasonable intrusion, nor intrusion without probable cause. Generally, a judge must be convinced by law enforcement that they have probable cause to search a person or their effects before they conduct the search. And to do so they develop a suspect profile that blends probability and facts.
For instance if a child is abducted a profile of the abductor immediately starts to compile;
- a witness might see a red truck speeding away
- statistics may suggest family members as likely suspects
That’s a quick profile of a suspect in a crime that has occurred. And is doesn’t have to be about a crime that has already occurred. Let’s say you were sitting in traffic and overheard the person in the red truck next to you talking on the phone about abducting a person. The profile would be the same: red truck and family member. Through this profile, the police have now have probable cause to stop red trucks near the incident and to search and question family members who either own or have access to a red truck. That’s common sense and that’s how profiling work. Without profiling what would police do, stop everyone? question everyone? search everyone? I know that sounds silly, but out of fear that’s exactly what we have going on in our airport everyday. Allowing the police to profile the suspect helps protect the rest of us from unreasonable searches.
The Transportation Security Administration (TSA) is stopping, questioning and searching everyone who wishes to board a flight and that is a huge intrusion into our rights because there is no probable cause for the vast majority of travelers. I think most of us of us would agree that these blanket intrusions were more reasonable and warranted immediately following 9/11 because the scope of the situation was not known. Now we have a better handle on the scope through profiling, yet the TSA is still searching and questioning everyone.
Take a look at this photo montage. All but one of the photos is of someone who has committed an act of terrorism or is accused with evidence of committing acts of terrorism, yet all would be screened equally at your local airport. Is that reasonable or unreasonable? How does probable cause come into play for these suspects? Certainly there is more to probable cause than skin color and I’d never suggest that skin color be used as a key factor in profiling a suspect. We could though consider age, culture, destination, affiliations, ethnic origin, family ties, associations, skin color, even religion and many other factors when creating a profile of a terrorist.
I have no doubt that agencies such as the FBI, CIA, or NSA have been creating terrorist profiles since well before 9/11 and I think it is long past the time that the TSA should have started using them. All airline travelers are not suspects and it doesn’t make us any more safe to treat us all as suspects. How many 7 year old, blonde, white kids have committed acts of terror? Any? Yet the suspect above has his kid’s toothpaste in a 1 quart zip lock and his shoes off when he goes to Sea World. How many 50 year old white guys have blown themselves up on an airline? Any? None come to mind. Yet, last week I went through a full body scan. Why? What was the probable cause? What was the reason?
It’s time we quit wasting time and money indiscriminately searching everyone out of some false sense of equality or political correctness. The longer we allow this to go on, the more numb we grow to the pain of losing our liberty. How long will it be until we are considered subjects rather than citizens? We need to more deeply scrutinize those for which we have probable cause and for the rest of us it’s time to return us our 4th Amendment rights.
It’s time we returned to profiling and common sense to protect our people.
Update: I woke up this morning to see a Facebook post that Dusty Gulleson had shared via one of his friends. The TSA is another government agency that was started with good intentions, but has since run amok. How would your child react to this?