" TO " * A VIEWPOINT \\N. Wednesday, June 16,1993 - The IchVei DailySummer Weely-5 For the eyes of orientees only For social egalitarians, orientation represents a flickering lightin asky of darkness. Young men and women,Black and white, JewishandMuslim,richand poor-allthrusttogether for a few days, temporarily free from the burdens of an oppressive society governed more by inheritance than merit. Yeah, I know what you're thinking. You're wondering if I'm playing with a full deck. You're saying, "Wait a minute. My orientation is more like being forced to watch the Repub- licanNational Convention than some egalitarian Utopia.Just when I started to have fun this summer, I get dragged off for a weekend of weirdos telling me that sex without signing a consensual agreement amounts to rape." But allow me a moment to explain. From your current perspective, orientation can be nothing but hell. Any amount of excitement generated by collegiate freedom and new friendsis quickly offsetby endless walking toursandhoursof CRISP lectures. Frommy worldly perspective, though(I'm asophomore), orientation represented everything that could be right in the world. As corny as it is, you're embarking on a new life. You're about to enter aworld fullofintellectualfreedom, wild weekends and endless opportunity. While most Americans suffer fromalackofopportunity,alackofschooling and alack of hope, you have the world in front of you. One of the most prestigious academic institutions in the United States has openeditsarms to you and whatyoudowiththatopening only the future can tell. So here's my advice to you: Don't waste the opportunity orientation offers. Approach that guy making the noises with his armpits, talk to that woman preaching about the inherent evils of capitalism. Just don't think you're too cool for any person in your group. Think of orientation as a cruise ship, in whichyou'restuckforafewdayswithagroupofpeoplesome alot like you and some totally different. You can either make thebestofitor you can hibernate and call your friends at home long distance. Who knows, the people you meet might just surprise the hell out of you? - Flint Jason Wainess S,/C a { a Ii rY . in + - o and a, V Ii's4-0 VIWPIN High Court takes next step in war' By MARC SPINDELMAN suchextraordinary(asthey were consideredthen) by a police officer who is conducting a lawful The U.S. Supreme Court last week handed powers over the livesof American citizens was to Terry frisk, and who "plainly feels" the contra- down a decision in Minnesota v. Dickerson rec- keeppoliceoutofharm's way. It was thought that band during the pat down. ognizing a new exception to the Fourth the rationale of Terry would extend no further If disheartening tosome, theresult washardly Amendment'ssearchwarrantrequirement.Some than a frisky to see whether a suspect was in surprising. The court had already interpreted will praise the ruling, suggesting that a police possession of a weapon which could be used to Terry to permit police to seize "nonthreatening unencumbered by technical, constitutional re- harm the investigating officer. At very least, contraband"where such contraband was discov- quirements will be better able to keep our streets Terry left unanswered the question of whether a ered during a Terry search because it was in safe. Others will criticize it, claiming that it police officer, during the course of such a search, , "plainview"for the officer to see. As well,before increasespolicepowerattheexpenseofcitizens' could also seize "nonthreatening contraband" thecasereachedtheSupremeCourt,"[m]oststate constitutional rights. Anyone familiar with the (i.e., contraband other than a weapon), which he and federal courts ha[d] recognized a so-called debate cannot but be surprised by the concurring detected during the search. The answer seemed 'plain feel' or 'plain touch' corollary to the plain- opinion of the usually "conservative" Justice clearenoughatthetime Terrywashandeddown: view doctrine." Thus, by adopting the "plain Antonin Scalia. Non-threatening contraband could not constitu- feel" doctrine, the Supreme Court moved, as Background The Fourth Amendment requires, with a few exceptions,thatthepolicehaveprobablecause to believe a search will produce evidence of crimi- nal activity before seeking a search warrant and that police seek and obtain a search warrant before conducting any search. The Supreme Courtestablishedoneofthefewexceptionstothe Fourth Amendmentin a 1968 case called Terry v Ohio, which struck at both parts of the Fourth Amendment requirements. First, it established thatapoliceofficermay stopanindividual("seize" himorherinthetermsof theFourth Amendment) with less than probable cause. All that was required was that the officer have a reasonable suspicion that the suspect was, or had been, engaged in criminal activity. Second, Terry authorized a police officer, during the stop, to "conduct a patdown [sic] search 'to determine whetherthepersonis...carrying aweapon."' Any weapons found during such a search may consti- tutionally be seized At the time that Terry was decided, many thought that the rationale for giving the police tionally be seized during a Terry stop, since it posed no direct and immediate danger to the life of the officer. After25 yearsof Terry stops and Terry frisks, we have grown accustomed to the regular exer- cise of police powers which once seemed quite extraordinary. Weneed(we believe)to submit to such "indignities" (Justice Scalia's term - see below) because we must do so (we ironically believe) in order to protect ourselves from the indignities of being victimized by the criminals who lurk around everycorner. (And maybe they do.) We think thatif we are prepared to sacrifice our constitutional rights we will better be able to safeguard those which we retain. All in thehope that ours will be a safer world. But thismay be a mistake, especially if we have given up so much that we no longer can remember all that we have sacrificed. The Supreme Court has provided (unani- mouslynoless!)an answerinDickerson which to those in 1968 would have seemed unthinkable. Yet,noone seemseven tonotice. Last week, the Supreme Court held that nonthreatening contra- band, e.g., drugs, may constitutionally be seized court observes predicted, to broaden the scopeoft Fourth Amendment exceptions. Dickerson was not,however, a foregone con- clusion. A "plain feel"isnot necessarily (even if itisnotimproperly)analogized toa"plain view." When it made its ruling in the case, the Supreme CourtofMinnesotaconsideredthe analogy inapt. That court thought that the sense of touch is (1) "...inherently less immediate and less reliable than the sense of sight," and (2) "...far more intrusive into the personal privacy that is at the coreoftheFourth Amendment,"than thesenseof sight. The Minnesota court, assessing whether a "plain feel" were possible, wryly concluded: "...theofficer'ssense oftouchmustcompare with that of the fabled princess who couldn't sleep when a pea was hidden beneath her pile of mattresses...[A] close examination of the record reveals that like the precocious princess, the officer's "immediate" discovery in this case is fiction, not fact." on drugs question - whether a "frisk" is or ought ever to be constitutionally permissible. With the notable exception of academic commentators, the foun- dations of Terry have not been challenged. Not, that is, until Justice Scalia's concurrence in Dickerson. Using guarded prose, Justice Scalia makes the veiled suggestion that the pat down authorizedin Terry may be unconstitutionalafter all. He writes, "There appears to be no clear support at common law for physically searching a [Terry-stop] suspect .... I frankly doubt, more- over,whetherthe fiercelyproudmenwhoadopted our Fourth Amendment would have allowed themselves to be subjected, on mere suspicion of being armed and dangerous, to such indignity [of aphysicalsearch.]"(One wishes strongly that the memory of the values for which these fiercely strong men who were our Founding Fathers fought - individual rights and liberties, human dignity and kindness - would inform more of the decisions of our nation's leaders, including those of Justice Scalia.) One should not too quickly conclude, how- ever, that the suggestions of his Dickerson con- currencemean that Justice Scaliahaschangedhis approach to constitutional interpretation (which approach is often rightly subject to much criti- cism). His comments in Dickerson are made quite cautiously and within his traditional inter- pretative framework. They nonethelessdemon- strate the finest of the justice's qualities: The ability and courage to question and to challenge whatothersaroundhimtake forgranted. Andfor this, even Justice Scalia'smost vociferouscritics must admit, he deserves our greatest respect. The Fundamental Question Since Terry was originally decided, some Spindelman is a law student. His column will have been asking the even more fundamental appear every other week.