'Probable Cause'
Fuerst, J. S.
'You'll have a fun story to tell at cocktail parties,' the FBI agent said 'Probable Cause' J.S. FUERST We came up in the early afternoon. It was cold for a late March day, and the wooded hills...
...The fact that they had violated our house gave them little concern...
...I put the notes aside and thought I would discuss the issue over dinner and resolve the problem after I had finished the income tax papers in the evening...
...Several months ago, as new residents, we had introduced ourselves to Officer Sigerist, asking him to keep an eye on the house...
...I don't smell any smoke now," I said, although there was an odor of burning chicken...
...I began to formulate the actions that would have been allowable to the FBI agent and the police, giving them the widest latitude: On the assumption that the burning chicken soup endangered the very existence of the house, they should have taken the chicken soup off the front burner like good Samaritans, then gotten out and waited...
...Was he connected with the bombing of the math building at the University of Wisconsin...
...They had virtually ransacked the house...
...I figured the kid had escaped out the back door...
...The mere presence of the burning chicken soup, the incompleted tax papers of J.S...
...They assumed that young Fuerst was holed up here...
...Then the discussion strayed to the recent thefts in the area, particularly in beachfront homes, and we agreed that the country was no more safe than the city, only more isolated...
...Oh," said Sigerist, "we were about to break in to put out the fire but we found a key, hanging over the window outside, so we let ourselves in...
...In Chimel v. California, where a search was invalidated by the court because no warrant had been issued, the Supreme Court held: "To provide the necessary security against unreasonable intrusion upon the private lives of individuals, the framers of the Fourth Amendment required adherence to judicial processes whenever possible, and subsequent history has confirmed the wisdom of that requirement, and this was not done to shield criminals or to make absence a safe haven for illegal activities...
...David R. Inglis Aprill970 The Government's Job The time has come to return to the fundamental principles on which this nation was founded and which made us great...
...Yet we had been sitting in our own living room, being interrogated by local and Federal police who had, as intruders, searched our house, our belongings, and our papers, with no warrant, all in clear violation of the law as stated by the U.S...
...I know who he is, but I don't know him," I answered...
...Around eight o'clock, Sigerist said, he had accompanied ten state troopers up to the house...
...Yet what price dignity...
...Perhaps I was in awe of the FBI...
...My informant, the one who thought he saw him, told me that the man he saw was in his mid-thirties, whereas we know John Allen is younger...
...We were not in the position of Elizabeth Norton, who was mistaken for Patty Hearst and had her privacy grossly invaded by less gentlemanly FBI agents and local police...
...My note-perusing was interrupted when some neighbors called to invite us to dinner...
...THE WAY WE SAW IT These excerpts from articles and editorials published during The Progressive's sixty-six year history have been edited only to achieve brevity...
...I offered him a drink, adding that he could get it himself if he liked, since he was the first guest who knew beforehand where we kept our liquor...
...Obviously Peters knew nothing about Camara...
...had it been a sunny spring day, my wife and I might have wished to go driving around the country roads...
...if the IRS agents review your schedule, they almost invariably find something wrong...
...and Dorothy Fuerst strewn over a table, the Mozart records, three played and one more to be played, and the blazing fire had to indicate that someone was returning—and fairly soon...
...Dorothy asked...
...It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law...
...Perhaps this is why a simple story—one in which no one really gets hurt—is important...
...What did he do...
...In order to protect the 'arresting' officer, to deprive the prisoner of potential means of escape, or to prevent destruction of evidence...
...That would have been difficult unless he were Harry Houdini," I interposed, "because the back door as well as the porch were locked from the inside," a detail I had checked while he was talking...
...He was an SDSer at the University of Wisconsin—in fact, I think he was a 'Weatherman.' He was there at the same time as our son...
...The records and books had obviously been examined, and they had rummaged through the income tax papers and other documents on the table top...
...The back up documents for the tax return were somewhat less disorganized than in most recent years, and I was congratulating myself that to the accompaniment of only three Mozart sonatas, I had the Schedule C on self-errtployment, Schedule D on my capital gains and losses, and the basic 1040 well in hand...
...He believes, as we do, that the most effective answer to the fraudulent claims of totalitarians—whether of the communist Left or the fascist Right—is a functioning social democracy that emphasizes economic opportunity no less than political liberty...
...Unable to sleep because Dorothy was sleeping so fitfully, i got out of bed to reread my notes on the Fourth Amendment article I had been working on earlier in the evening...
...Exactly why I didn't call them to account, I'm still not sure...
...My notes on Frankfurter's Rabinowitz dissent and Dorothy's fitful stirrings no longer appeared in the context of academic tinkering for a Fourth Amendment analysis...
...The Lord must have sent you," I said...
...What about the fine phrases of President John Adams and successive Supreme Court justices about the Fourth Amendment constituting the very essence of American independence...
...The right of privacy is too precious to entrust to the direction of those whose job is the detection of crime and the arrest of criminals...
...Would it have caused so much smoke...
...it highlights with facts what Wise merely speculates upon...
...I gathered some wood and, after a few misstarts, had a blazing fire...
...I asked...
...We were not subject to arrest...
...A young man with a criminal record is spotted and he happens to have the same name as one of the residents...
...Every legal precedent answers in the negative, yet to the Federal, state, and local police forces, apparently, the pronouncements of the U.S...
...We were not in the position of the couple in Carbon-dale, Illinois, who were beaten and tied up by Federal agents...
...They opened our drawers, which bothered Dorothy's sense of neatness, and they examined my income tax papers rather earlier than the IRS, which clearly violated my rights of privacy...
...Do you know this young man, John Allen Fuerst...
...There had obviously been an earlier conversation when we were not there, and the boss must have known all about the search...
...I wondered how Emerson's dictum that "men are conservative after dinner" would affect my final markings in the income tax...
...We could answer none of these questions as we climbed the stairs of our violated A-frame to attempt to go back to sleep and forget the entire incident...
...You're sure you don't know this kid John Fuerst...
...As we turned up the driveway on the way home...
...I remembered my recurrent fears about the vulnerability to fire of our secluded wood-and-glass A-frame house...
...Perhaps it was because the violations had all taken place and there was nothing to be gained by ordering them out of the house...
...Thank God," I blurted...
...How did you get in...
...I asked, carefully adding, "which we don't happen to use...
...What would you have done if you had found some marijuana...
...No, but I think he had met him or at least knew him by sight because of the similar names...
...It was cold for a late March day, and the wooded hills that completely surrounded our cottage shut out the little sunlight that filtered through the clouds...
...But how did you happen to come to our house...
...Supreme Court...
...The house was blazing with lights, and three blue police cars and an unmarked car blocked the small parking area in front of the house...
...Fuerst is assistant director of the graduate program in urban studies at Loyola University of Chicago...
...Justice William 0. Douglas December 1957 Arms-Race Robbery Every gallon of valuable fuel, every pound of copper and uranium that goes into the arms race is robbed from the present and future quality of human life...
...Obviously, the police were as unaware of John Adams as they were of Boyd, Camara, or the basic ideas of American independence...
...The income tax papers were spread out on the coffee table...
...and in an earlier case, Frank v. Maryland, the minority opinion which later became part of the majority opinion under Camara had said, "The security of one's privacy against arbitrary intrusion by the police, which is at the core of the Fourth Amendment, is basic to a free society...
...After all, I had nothing to hide...
...Since the FBI agent had been led to believe that the person observed in town was older than the Fuerst he was looking for and hence there was a good possibility of a false lead, why did he find it so urgent to come to our house and enter even when we weren't there...
...How do you happen to be looking here in Broken Arrow...
...David Wise, author of The Invisible Government, recently wrote in the Chicago Sun-Times: "Under the cloak of the magic slogan "national security" we have strayed so far from the Constitution and the Bill of Rights that the Fourth Amendment might now read: 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, except by the FBI, the CIA, the Plumbers, or anybody else.' . . . Once the Government turns loose its agents to commit burglaries, there is no end to it...
...Only thus can I account for a disregard of the history embedded in the Fourth Amendment...
...Where did the smoke come from...
...The question with which I had been wrestling was whether the Supreme Court liberals had, in fact, overreacted in Frank v. Maryland and Camara v. San Francisco...
...That must be our regional office...
...Senator Frank Church, commenting recently on the transgressions of the CIA and FBI, observed, "They seem to do it without any real compunction or even awareness...
...Peters asked, ignoring my riposte...
...They had held that the Court must protect citizens from warrantless inspections, even by building departments, because it was too easy to drift into violations of civil liberties...
...I decided to leave the tax documents for a while and tackle some of my notes for the article I was writing on Fourth Amendment violations...
...No...
...What price privacy...
...Well, Sigerist, the local policeman, said some Fuersts lived at the top of the hill in Broken Arrow...
...We were now more exercised than we had been during the entire incident...
...My boss called me in Tulsa and I've been here since this afternoon checking out leads...
...I was not altogether unhappy about the weather...
...We suffered no real damages for which we can sue...
...The income tax forms had been put off until another day, and we were lying in bed, alternately damning the police for invading our privacy and damning ourselves for remaining so disinterestedly amused...
...Now that it is all over, people have asked me, and I have asked them, should this "fun" story stop at cocktail parties...
...Peters left shortly thereafter, saying, "You know you'll have a hell of a fun story to tell at cocktail parties...
...Why, if they believed searching our house was so important, did they not get a warrant...
...Dorothy wondered how she could have left the soup on, and if she had, wouldn't it have been on "simmer...
...Let us do away with confidential informants, dossiers, political spies, wire-tapping, and headlines for publicity-seeking ex-Communists...
...We found the electric burner on under the chicken soup and took the pot off," the second policeman added...
...Our regional office got a tip from someone in Broken Arrow that he had been seen at the local pizza joint...
...Why is search ever permitted...
...July 1948 Unlimited Horizons Unless the horizons are unlimited, we risk being governed by a set of prejudices of a bygone day...
...But were we really hurt...
...I switched off the stereo in the middle of the fourth sonata and turned off the lights, blotting out the burden of income tax forms and scholarly chores...
...Do Americans have to suffer the infringement of their rights...
...Did you son know him...
...Supreme Court are just that—"pronouncements" not to be confused with local orders to "go out and get your man...
...The plainclothesman stepped forward...
...Having surrounded it, they waited...
...Further, there was no evidence that young Fuerst had been in our house, particularly since the description of the suspect by an informant (Perkins knew this before his search and our meeting) did not tally with the description of Fuerst as he knew it...
...No, just a lot of smoke...
...Would I favor the Government or ourselves on hairline decisions...
...What if their hunch had been correct and we had been related to John Allen Fuerst...
...Under all circumstances, I was far more friendly with Peters than I would be if this happened again...
...You mean even the FBI came up to put out the fire...
...I guess we were wrong...
...No," said Peters...
...Justice Bradley wrote in the 1880s: "The progress is too easy from police action unscrutinized by judicial authorization to the police state...
...At the bottom of the next page I noticed a footnote from United States v. Boyd...
...Not quite," said Peters, pulling a picture out of his wallet...
...However, I am going to check your story...
...That's the guy...
...Not until they saw the smoke from the stove, Sigerist assured us, did they let themselves in...
...The officers tracked up our house with mud and left a mess which infuriated my wife but didn't particularly bother me...
...Watergate, Ellsberg— you and I may be next...
...Their scrutiny of the contents of my wallet, their rifling of my papers, their rummaging through my belongings were all part of their "duty...
...No, I don't," I said, still too amiably...
...My reverie was broken as we passed the last curve at the top of the hill...
...I didn't press the issue...
...In an earlier article (based on the answers to a survey of forty building departments in the United States) I had suggested there seemed to be little likelihood that municipal building departments would infringe on civil liberties of a political nature under the smokescreen of J.S...
...The clue to the meaning of the Fourth Amendment is John Adams's statement that in it 'American independence was then and there born.' " I was becoming annoyed...
...Had Peters ever heard of United States v. Rabinowitz...
...They never called or spoke to him...
...We saved your place from burning down...
...Wrong number," I reported...
...The contents of my wallet were spread over several bar stools with my credit cards, university identification, library cards, and assorted receipts in view...
...Was there any fire...
...Yet, I was uneasy in the face of the opinions of the civil liberty-minded justices who had far more experience than I in this field, and with whom I almost invariably agreed...
...In an early draft, I found the following paragraph concerning warrants: "In Camara, the Supreme Court had said that no policeman, Federal state, or local has a right to go into a private home to search for anything without a warrant from the court...
...He believes, as we do, in the capacity of a free people to safeguard individual liberty while providing, in the words of the Constitution, for the general welfare...
...I jammed on the brakes and ran into the house...
...By now the house had been restored to some semblance of order...
...Let the Government stick to its job of detecting and preventing crime, but let it abolish resort to the techniques of the police state...
...Instead, I wanted to get a fire going and do my work in front of it...
...If there was all that smoke at 8:30 or 9:00 p.m., where did it go by 9:30 p.m...
...When we found no one," added Peters, who, though in obvious command, was young and casually dressed in a windbreaker and slacks, "I sent the troopers to search the surrounding woods...
...The ten state troopers, two local police, and the FBI agent were not violating the dictates of the Supreme Court to search for a homicidal psychopath...
...Sigerist told me later that he believed that even without a warrant, which they never bothered to obtain, the Constitution and the courts, on the basis of probable cause, empowered the FBI and police as their local collaborators to search the house for the young man and scrutinize my papers for any connection with him...
...Bob Sigerist, the local policeman, met us at the door...
...We decided to go up with them and have a look around your house and property, thinking that perhaps the kid was using this as a hideout and that you people were either his parents or relatives...
...It is a wonderful place to seek seclusion because the trees make it impossible to see the cottage from the road, though it is only a short distance away and at the top of a hill...
...I asked...
...Three minutes later, it rang again and Peters picked up the phone and told his boss our story, adding only that he would follow through...
...We've been looking for him since 1970...
...The phone rang and when I answered, the voice at the other end said, "I must have a wrong number...
...Dorothy inquired...
...About four hours had passed since the police had left...
...and had only entered the house about 8:45, when he saw much smoke through the window...
...The pot was not badly charred...
...Joseph L. Rauh Jr...
...building or fire inspections...
...We spent a pleasant evening discussing the vagaries of income tax inspectors, and how it never seemed to make any difference how accurate your figures were...
...The right of people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated and no warrants shall issue, except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.' These words are not just a literary composition...
...Quite a lot of you...
...The founders wrote into their Constitution their convictions that law enforcement does not require the easy but dangerous way of letting police determine when the search is called for without prior authorization by a magistrate...
...It may be safely asserted that crime is most effectively brought to book when the principles underlying the constitutional restraints upon the police are most scrupulously observed...
...Merely to take the chicken soup off the stove...
...Would this have given the FBI the right to use the local police to surround our house and ransack our personal papers and belongings...
...I went to the restaurant and the waitress there didn't know anything about the young man...
...Unless an author's name is appended, the material appeared as editorial comment...
...Several times in the half hour Peters spent with us, he remarked that this was one of the most unusual coincidences of his seven-year FBI career...
...We figure the guy is using the place as a hideout...
...In addition, they had opened our desk drawers, the clothes drawers, the closets, and the trap door to the attic...
...Here is Broken Arrow, a sleepy resort town of 1,600 souls...
...When the police under FBI instruction or the FBI itself (I was never certain which) searched the house and found nobody, why did they look through the drawers, the cabinets, the books and records, my income tax, and my wallet for young Fuerst...
...While I was chatting with Peters, I could see Dorothy becoming increasingly distressed with her discoveries...
...Yet, in a famous dissent that I never tire of discussing in my courses, Justice Felix Frankfurter emphasized the importance of the case like ours, the little case: "The impact of a little case is apt to obscure the complications of the generalizations to which this case gives rise...
...Let me answer the next time it rings...
...Why weren't they outside rather than inside...
...I remember asking whether he thought he had the right to come in, and Peters also mumbled something about "probable cause," which seemed to be the password...
...They are not to be read as they might be read by a man who knows English but has no knowledge of the history that gave rise to the words...
...If we are restricted in art, religion, economics, political theory, or any other great field of knowledge, we may become victims of conformity in an age where salvation can be won only by non-conformity...
...But Peters answered nonchalantly enough, "Nothing, because that was not what we were looking for...
...Dorothy finally joined me downstairs, where I sat at the table glancing through mounds of cards and papers...
...My wife looked at the cars, the open door, the three policemen, and the civilian who could be seen through the undraped picture window, and gasped, "We've been robbed...
...May 1950...
...If we could stop this arms-race robbery from human needs and if we could evolve an economic system dependent on stability rather than continual growth, then we could both spread the bounty of our environment more equitably over the centuries and get rid of the awful pollution with which our Twentieth Century gluttony is poisoning us...
...What are these necessities...
...It occurred to me that ours was a small case, resulting in little or no damage except to our dignity...
...I began to read her a further Frankfurter quote in Rabinowitz: "It is true that the right to search has been subject to certain well recognized exceptions arising from the necessities of the case...
...They could see through the windows that the fire was burning in the fireplace, a phonograph record changer was poised for playing, and papers were spread over the coffee table...
...I'm Joe Peters of the FBI," he said, extending his credentials...
...Or perhaps I was just unable to relate my real-life situation to the "academic" work I was engaged in...
...In fact, since they were waiting, they knew we were coming back...
...They were looking for a young man whose "crimes" probably bordered on the political or "seditious," although I never was told exactly what it was that young Fuerst was supposed to have done...
...We're looking for him in connection with an incident in New York...
...But Sigerist had said, with Joe Peters concurring, that they had "probable cause" and were safeguarding society from young Fuerst and his accomplices...
...Justice Douglas's Credo Bill Douglas believes, as we do, in an indigenously American radicalism...
...Sigerist told us he had been there since 8 p.m...
...Second, there was no possibility that the "prisoner" would escape if, indeed, he were there, since the house was surrounded...
...Third, there was no evidence to be destroyed—certainly not in my wallet, my papers, or my income tax documents...
...You're sure lucky we were here," he said...
...He took a soft drink because he didn't drink during working hours...
...We wouldn't have entered if we hadn't seen and smelled smoke," he explained...
...It is most relevant," said Frankfurter, "that the officers had no excuse for not getting a search warrant, for that is precisely what the Fourth Amendment was directed against—that some magistrate, not the police officer shall determine who shall be rummaging around in my room...
...He was thinking about catching young Fuerst...
...What about the rights of political freedom as well as personal privacy...
...I would like you son's name, address, and phone number so that we can follow up on him...
Vol. 40 • January 1976 • No. 1
