Reasonable Search Disapproved by Colorado Court

Lest my readers get the idea from past columns that I condemn all searches by government agents, here is a case where I believe the courts have gone overboard in condemning a police search.

A Denver area search found a methamphetamine lab in a mobile home. During that search, two suspicious books were found: Advanced Techniques of Clandestine Psychedelic and Amphetamine Manufacture, by Uncle Fester, and The Construction and Operation of Clandestine Drug Laboratories, by Jack B. Nimble. Along with the books was the mailer envelope and invoice from the Tattered Cover Book Store.

The name on the invoice wasn't conclusive evidence of who had ordered the books, since anyone could have ordered them and had them sent to the mobile home. The police needed proof that their suspect, a resident in the home, had ordered the books himself.

To get that proof, the investigators obtained a search warrant for the book store's record of the purchase. The bookstore argued in court that the First Amendment absolutely protects its records of customer purchases. A Denver judge ruled in favor of the search, but now the Colorado Supreme Court has overruled that judge. The Supreme Court claims that the search warrant should never have been issued because the police didn't prove a "compelling need" to obtain the records, rather than merely a "substantial and legitimate interest."

The Colorado Supreme Court buried the logic of the case in the legal sophistries that have accreted onto constitutional law over the years. Courts have generally used such terms as "compelling need" to explain exceptions they have made to absolute rules laid down in the Constitution. When there is a perfect match between the facts of the case and the clear words of the Constitution, the courts need to defer to the Constitution and ignore the precedents.

The Fourth Amendment clearly spells out what is needed to make a search "reasonable" and therefore legal: a search warrant issued with "probable cause," and specifying exactly the place to be searched and the item(s) to be searched for. The probable cause is the presence of the meth lab, which no one disputes. The place to be searched is the bookstore, and the item to be searched for is the record of the purchase in question. The search warrant satisfied the constitutional requirements; the book store should have to turn over the record. That seems as clear as day to me.

Should our book store or other purchase records be protected? Yes, I believe so. It would have been wrong for the police to search all of the store's records to find every purchaser of those same books, because there would have been no probable cause: no proof that a crime had probably been committed by the purchasers. Mere interest in a subject, or even contemplation of a crime, is not probable cause. Such blanket searches could easily be extended to persecute people for political or religious opinions, and are clearly not covered under the powers granted the state under the Constitution.

It seems to me that much bad legislation and many unreasonable court decisions come from over-interpreting or deliberate misinterpretations of the Constitution. An over-reliance on court precedents based on such interpretations leads to a government of men, not of laws. Every government official, including every judge, is responsible for obeying the clear words of the Constitution, no matter what past decisions may have been.