Practice Corner: Teenagers and the Fourth Amendment

by Daniel DeWoskin
Trial Attorney
www.atlantatrial.com

I was recently invited as a guest speaker for the Government class at Decatur High School on the topic of the Fourth Amendment. The teacher left the field wide open as to what I was to cover and he made it clear that the goal was to get beyond the simplicity with which the students would dismiss everything as a violation of someone’s rights.

At first, the lack of strict parameters for the presentation caused me some concern. How would I maintain the students’ attention for an hour or an hour and a half? Certainly I didn’t want to drone on and on about case law to high school students. As my wife, friends and relatives can easily tell you, there is nothing sexy about case law. Once I was able to imagine what the students might want or expect to hear on the topic, I was prepared to address and engage them in a discussion about what the Fourth Amendment was and what it is today.

During the first class, at 8 a.m., the students were not ready to hear me go into speeches about freedom, our founding fathers, privacy rights, or anything else for that matter. I could blame the fact that it was 8 a.m., but that is a clear copout. Although I had prepared some topics on risks and remedies, I failed to make the facts and possibilities real enough for the students to appreciate.

On the other hand, I was successful in pointing out that although the mere 54 words of the Fourth Amendment involve no real “legalese” and were meant to be comprehended by every person, not just the elite, hundreds of years of history have given life to vastly different interpretations as to the meaning and application of the rights we have as Americans.

When I spoke to the afternoon class, there was a significant increase in participation and feedback from the students. They asked very specific questions about the types of cases I have had and when I have seen these issues come up. I got questions that spoke to issues that they as students have either encountered or considered, such as privacy issues in a public school setting as well as questions about how I decided I wanted to defend “criminals.”  Luckily, I was able to steer the conversation back to the Fourth Amendment or tailor my responses in such a way that it provided a Fourth Amendment backdrop to their particular questions.

My response to every single question that began “What if someone . . .” or “What if the police . . .” started out with the simple sentence, “It depends.”  I explained that new circumstances arise every day that bring either a nuance or possible change in the application of the law and that advances in technology and societal components heavily influence the interpretation of the law. One thing I found surprising is that when I mentioned how 9-11 had fundamentally shifted how many people in this country value freedom, or perhaps value it in light of fears about safety and security, the students did not seem to grasp the point. For me, this was the first moment I considered what a difference 10 years can make.

In two classes, not a single student had heard of the Patriot Act. We had discussed how being “secure in their persons, houses, papers, and effects” extended to conversations and involved subjective and objective prongs of a reasonable expectation of privacy. We had discussed the probable cause and proper legal procedure. What was missing was any skepticism and vigilance that brought about the Fourth Amendment in the first place.

If I seem to be chastising the students in any way for being naïve, please know that is not what my impression was of these bright young individuals. In fact, the simplicity with which they at first chose to understand the Fourth Amendment, to make everything as black and white as possible, was entirely due to a fundamental desire for there to be justice and fairness in the law. The questions that these students asked me show an unyielding inclination to believe that everyone involved in the criminal justice system and government has good intentions and operates in good faith.

Without ever speaking of bad cops, activist judges, or any other typical spin terms that interject opinions for a factual and intellectual discussion about the Bill of Rights, the students and I discussed motivations of law enforcement, motivations of criminals and perhaps criminal defendants, and motivations of the courts. We had a frank and honest conversation about situations that when all involved operate in good faith, violations of the Fourth Amendment may take place and need to be addressed through the proper channels. By the end of a mere 90-minute encounter, the students had learned how the Fourth Amendment is sacred to our freedom and culture, and I had learned much, much more than I knew when I walked into the classroom.

It was refreshing for me to see principles of fairness and justice held as sacrosanct by virtually every student. Sure, we see these things as being sacred, but most of us have long ago accepted them as aspirational in many ways. We have seen and experienced how corruption, incompetence, malevolence, and fear can deprive our clients, our communities, and victims of justice. We continue to fight for justice and to embrace fairness as our center of gravity, but we lack the shock that these students have whenever the process falls short.

After the second period during which I spoke, several students came up and spoke to me about what it has meant to me to be an attorney. I told them that it was rewarding for me on several different levels. I encouraged them to get involved in mock trial at school and to sharpen their analytical skills to match their idealism. If my experience is just a sample of the idealism that many high school students in our community embrace, perhaps justice is not nearly as elusive as I sometimes think.