IN 1760, the British government began a crackdown on illegal imports by American colonists. British customs officers, without judicial warrants or probable cause, searched homes and businesses looking for trade violations. A group of Boston merchants retained the lawyer James Otis to oppose this policy. In words that inspired revolutionary fervor, Otis declared that British search policy ``places the liberty of every man in the hands of every petty officer.''
Today, in response to a perceived increase in crime and violence, the Clinton administration has proposed police practices reminiscent of 18th-century British search tactics.
Responding to the pleas of residents of a crime-plagued Chicago housing project, the administration announced its support for warrantless searches of public housing apartments, frisking of suspicious persons, and the installation of metal detectors in the lobbies of buildings.
While the administration's proposals may please those calling for more ``law and order,'' the options developed by the Clinton plan are inconsistent with the constitutional principles James Otis helped inspire.
The airwaves are jammed with the sound of politicians calling for more programs to get tough on criminals. Thugs and hoodlums are depriving innocent persons of their rights to safe housing, schools, and neighborhoods. Regarding warrantless sweeps of public housing projects, Housing and Urban Development Secretary Henry Cisneros dismissed the objections of civil liberties lawyers, whose ``abstract analysis of people's rights,'' he said, is ``swamped in real life by people's rights being denied.''
The secretary's treatment of the Constitution leaves a lot to be desired. The Fourth Amendment guarantees everybody the right to be free from unreasonable searches and seizures by the government. It is a ``made in America'' freedom - a product of our battle against British law enforcement methods.
Unfortunately, the Fourth Amendment never has been popular, particularly during tough times. During the Prohibition era, the federal government routinely conducted illegal wiretaps to catch suspected bootleggers. In the 1960s and 1970s, state and federal officials continued this unlawful practice against alleged dissidents and political enemies.
The ``war on drugs'' involves officers going onto buses and trains and demanding to see the identification and tickets of passengers. The Supreme Court has said that police officers - acting without a warrant or any evidence of criminality - do not violate our privacy when they confiscate and search our garbage. News programs regularly show police officers, using sledgehammers and accompanied by menacing dogs, raiding the homes of persons suspected of selling narcotics.
Looking for illegal drugs, a Boston police SWAT team using a no-knock warrant burst into the apartment of a 75-year-old minister, chased the minister through his home, and broke down a bedroom door to grab him. While being handcuffed, the minister died of what was later diagnosed as a heart attack. The police subsequently discovered they had raided the wrong apartment.
President Clinton now wants better security measures at the nation's public housing projects. Tenants will be encouraged to sign ``consent clauses'' that allow police to conduct unannounced searches of their apartments. Questioned at a press briefing, the acting associate attorney general conceded that consent clauses could ``in some circumstances'' be a mandatory condition of a tenant's lease. Housing officials have also been encouraged to conduct warrantless sweeps in the case of an ``emergency.'' These measures, the public is assured, do no violence to Fourth Amendment freedoms.
Perhaps, to make it truly voluntary, tenants should be informed of their right to reject such ``consent clauses'' and to revoke consent that has been given previously. This is their right under the Constitution. On this point, however, the Clinton proposals are noncommittal. People with limited choices about where to live should not be presented with ``take it or leave'' leases that require the sacrifice of rights that the rest of us enjoy.
Administration officials say that tenant support for warrantless searches and mandatory consent clauses are relevant criteria for deciding the legality of these measures. But these officials know that Fourth Amendment rights are personal; they cannot be waived by majority rule. If 99 percent of the tenants of a housing project favor police sweeps, they are free to open their doors anytime they wish. Their desires, no matter how reasonable, should not control the Fourth Amendment rights of those who want to protect their privacy.
Now, administration officials favor immediate sweeps in emergency conditions, but leave it up to local authorities to define when emergency conditions exist. This sort of verbal back-and-forth will not satisfy constitutional norms. A warrantless search is permissible in an emergency, but the search must be directed at a specific target and supported by concrete evidence. Dragnet sweeps that encompass searching every apartment in a building do not meet these standards.
Requiring police officers to obtain warrants undoubtedly delays the process of searching. To some, this may seem too high a price to pay, but it is the price of liberty.
James Otis recognized as much when he observed: ``A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.'' The Opinion/Essay Page welcomes manuscripts. Authors of articles we accept will be notified by telephone. Authors of articles not accepted will be notified by postcard. Send manuscripts by mail to Opinions/Essays, One Norway Street, Boston, MA 02115, by fax to 617 -450-2317, or by Internet E-mail to OPED@RACHEL.CSPS.COM.