The Boston Police Department has announced a new program designed to remove unlawful firearms from the hands of teenagers. The program will “call upon parents in high-crime neighborhoods to allow detectives into their homes, without a warrant, to search for guns in their children’s bedrooms“. Immediately the question arose as to wether or not this new program falls within the guidelines of the Constitution.

“I just have a queasy feeling anytime the police try to do an end run around the Constitution,” said Thomas Nolan, a former Boston police lieutenant who now teaches criminology at Boston University. “The police have restrictions on their authority and ability to conduct searches. The Constitution was written with a very specific intent, and that was to keep the law out of private homes unless there is a written document signed by a judge and based on probable cause. Here, you don’t have that.”

As a former Boston police lieutenant, Thomas Nolan should be ashamed for misrepresenting police powers with regards to search and seizure. He is very aware, as are most Americans, a warrant is not needed to conduct a lawful search in all instances. Police officers routinely will ask drivers they have pulled over for a traffic violation if they may have permission to search the vehicle. Once permission is granted, anything found in the vehicle would be considered admittable into a court of law as evidence.

AllahPundit has more on the Fourth Amendment and relevant court rulings:

I’m no Fourth Amendment scholar but some cursory googling reveals that, according to Schneckloth v. Bustomante, “one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent.” So as long as they’re asking to come in and not trying to force their way in, they don’t need probable cause.

He goes on to reference court cases which involved co-tenants, and ones ability to grant permission of a search of the others property on the premises. It appears from the court case referenced, that if one party is absent, the other party may give permission to the search of the premises, even more so in the case of a parent/child relationship. In the case of a child who is present and objects to the search, a parent or legal guardian who is understood to have “authority powerful enough to prevail over the co-tenant’s objection” could still offer consent to the search.

AllahPundit considers this to be a “shady program”, and I am quite sure many will agree with him. I am not one of those people. This program is designed to be pre-emptive, meaning the purpose of the program is to remove guns from schools before they are used. Police officers will not be making any arrests based on the guns they have confiscated, unless that particular gun has been used in a homicide. Barring that, all the Boston Police are attempting to do is remove unlawful weapons from the hands of teenagers, and I can see nothing wrong with that objective.

The only Constitutional issue I can see with this program would be in the event the police officers find a large quantity of illegal narcotics while conducting their search. Officers will be allowed to use discretion as to wether or not to make arrests if narcotics are found while conducting their search. Their intent is to only confiscate modest amounts of narcotics, however if they were to find a kilo of cocaine for example, I am certain an arrest would be made. It is at that point the Constitutionality of the program will, and should be questioned.

Parents who offer consent to these searches are doing so under the premise that the police are their to remove a firearm, and no arrest will be made. If drugs are found, and the officers arrest the child it could be argued the search was conducted under false pretenses.

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Constitution, Second Amendment, Supreme Court