“If you have nothing to hide, you have nothing to fear” are some of the most chilling words ever spoken. Those words, having been uttered in German, Russian, Spanish, and various Chinese dialects, are finding their way into our modern English conversation.
Throughout history the "nothing to hide, nothing to fear" reasoning was used in the Grossdeutsches Reich (Greater German Reich), the United Soviet Socialist Republic, and numerous totalitarian states to make a reasonable argument for the arbitrary invasion of home and privacy committed by the state.
The idea that the state would put forth the reasonable excuse of “if you have nothing to hide you should have nothing to fear” is not a product of modern times. The founders of the United States understood the tendency of the government to cloak their tyrannical actions in that seeming innocuous rationale.
Police in Pennsylvania are now able to search vehicles without a warrant. AP Photo
In the Virginia Declaration of Rights, June 12, 1776, the author, George Mason, warns in Section 10:
“That general warrants, whereby an 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.”
For those who went to public school during the last 20 years, June 12, 1776 pre-dates the Declaration of Independence and the U.S. Constitution.
On April 29, 2014 the Pennsylvania Supreme Court, in a 4-2 decision, ruled that police officers no longer need to obtain a warrant to search a motor vehicle and that only an officer’s “probable cause” was needed.
Justice Seamus McCaffery supported the decision by stating Pennsylvania will now follow a "uniform standard for a warrantless search of a motor vehicle, applicable in federal and state court, to avoid unnecessary confusion, conflict and inconsistency in this often-litigated area."
McCaffery’s opinion of the case was not shared by all of the justices. While offering a dissenting opinion, Justice Debra McCloskey-Todd stated that the court’s decision "heedlessly contravenes over 225 years of unyielding protection against unreasonable search and seizure which our people have enjoyed as their birthright."
Apparently Todd and the other justice who voted against the decision have read the Constitution of the Commonwealth of Pennsylvania.
Section Eight of the Pennsylvania Constitution is entitled Security from Searches and Seizures and reads as follows:
“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed by the affiant.”
As for the United States Constitution, Amendment 4 specifically states:
“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.”
I believe we can see a distinct pattern here when considering the Virginia Declaration of Rights, and both the Pennsylvania and United State Constitutions. The founders of this nation understood that for the people to maintain individual liberty a bulwark had to be put into place to restrict the government from searching and seizing persons and property at merely at their will.
Credit: AFP/Getty Images
The current situation in Pennsylvania brings us right back to the original concept that those who are not guilty should have nothing to hide. When confronted by a headline such as “Pennsylvania Cops No Longer Need a Warrant to Search Citizen’s Vehicles,” many Americans will cling to the justification that if you have nothing to hide you have nothing to fear. Some would even go so far as to imply that the existence of a criminal element in our society justifies ignoring or circumventing the Constitution. That a sitting judge would lean in such a direction is a direct cause for concern.
To that previous way of thinking I would pose the question; “How have we managed to charge, arrest, try and convict law-breakers for the last 200 years with that pesky Bill of Rights in place?” If the laws restricting the actions of the state are such an impediment, how have we survived as a nation without devolving to a condition of criminal anarchy?
As to the specific question of vehicle searches during a traffic stop, when I attended the police academy in 1991 we underwent 40 hours of state and constitutional law education. We learned all about probable cause and reasonable articulable suspicion and how to express those in spoken or written form.
During a traffic stop, an officer was allowed to search the area of a vehicle that came under direct control of the driver if they had probable cause to believe that a crime may have occurred. The trunk/storage area, passenger compartment, engine compartment, etc. could not be searched unless A) consent was given by the owner/operator of the vehicle or B) a search warrant was issued by a judge or magistrate.
That standard has been in place for decades and police officers have managed to arrest thousands of criminals as a of lawful traffic stops.
For those who are still living in the “nothing to hide, nothing to fear” camp, I’d offer the example of Boston, Massachusetts in April 2013 in the aftermath of the terrorist bombing at the Marathon.
The Cape Cod, Massachusetts, Police Department SWAT team search houses for the second of two suspects wanted in the Boston Marathon bombings takes place April 19, 2013 in Watertown, Massachusetts. Thousands of heavily armed police staged an intense manhunt Friday for a Chechen teenager suspected in the Boston marathon bombings with his brother, who was killed in a shootout. Dzhokhar Tsarnaev, 19, defied the massive force after his 26-year-old brother Tamerlan was shot and suffered critical injuries from explosives believed to have been strapped to his body. AFP PHOTO / TIMOTHY A. CLARY (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)
Scores of armed employees of the state violated their oaths to the Constitution of Massachusetts, specifically Article 14, and the U.S. Constitution when they forcibly conducted hundreds, if not thousands, of warrantless searches of private homes to hunt for a “suspect at large.”
Folks, there will always be a criminal element in society. At this very moment in time, as you read this article, there are unsolved thefts, rapes, robberies and/or murders in your community. That means there are “suspects at large” who have not yet been arrested.
If you support the current trend in Pennsylvania and Massachusetts then we might as well discard the laws that hinder the state and put our lives and our liberty squarely into the hands of those in power.
Surely if you have nothing to hide, you have nothing to fear. Papers, please.
For the past three decades Paul Markel has had the privilege to study with some of the finest instructors the U.S. Military and Law Enforcement world have to offer. Visit Student of the Gun.
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