Thursday, November 29, 2007

Warrantless Searches in Boston

In an article today on, it is reported that a plan is in place for Boston police officers to begin searching homes in what are deemed to be “several impoverished, high-crime neighborhoods.” Much like the searches written about here, these searches will be conducted without warrants. However, although searches in both Boston and San Diego share the facts that they are performed without warrants and seem to target low-income families, there are a few differences which would seem, as proposed, to make the Boston searches much less objectionable.

First and perhaps most importantly, is that it appears that parents in Boston will actually have free choice to consent to any searches. According to the article, “[t]hree plainclothes officers and a clergyperson or community activist will show up at the youth's home” and “ask parents to sign a form allowing the search of the home, including the child's room.” In San Diego, the policy is basically to let the police search the person’s home or be denied any government assistance.

Another significant difference between these searches is that they will only be performed in Boston after “teams of police officers assigned to Boston's public schools [have] hunt[ed] for leads on youths believed to have guns.” In San Diego, although the justification for such searches were to investigate fraud, no probable cause was required before conducting searches of the homes; in Boston, it seems that some evidence of probable cause will be required before any search will be performed.

Unlike the searches in San Diego, the potential punishment associated with the search is less severe. In San Diego, any finding of fraud or refusal to allow the search will result in denial of benefits. In Boston, “[w]eapons found in the child's possession will be seized, and no charges will be filed unless the weapon is linked to a violent crime.”

Still, the ACLU has taken a stand against both the searches in Boston and San Diego. The ACLU alleges that people are not aware of all the potential issues that can arise from allowing these searches, and many of those being searched in the Boston neighborhood, being from third world countries, may not feel they have a choice when asked to consent to a search. Unlike in San Diego, it seems that the ACLU has yet to garner substantial support in Boston.

Others claim that other ramifications may come from allowing such warrantless searches. Although it appears that people in Boston will not suffer directly by disallowing the searches (unlike the mandated policy in San Diego to refuse benefits to those not consenting to a search), it is feared that those who do refuse will be more closely watched by the police and other authority figures. Also, it is feared that this program could lead to allegations of racial profiling.

As of now, there seems to be no pending litigation regarding the Boston searches; however, this may be due to the fact that the program is not yet in full effect. It may take some time for many of the issues to surface, as the initial acceptance of the searches may soon wane once people realize how the program actually functions. The issues of racial profiling, indirect or direct consequences for failing to consent to a search and perceived oppression may eventually come into play and cause litigation very similar to what is now happening in the San Diego case. If any or all of these issues do in fact arise, then, much like in San Diego, the “consent” given to searches in Boston most likely would be more coerced than freely given and such searches would violate protected liberties and rights and would need to be ceased.

It would be unfortunate if these potential issues do come to fruition as the program in Boston, on paper, seems like it has been tailored to meet an important goal, the prevention of violence, while also protecting the rights of those being searched (by requiring probable cause and seeking what appears to be true consent). The problem arises in that what appears ideal on paper does not always prove to be ideal in practice.

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