Fourth Amendment

As Americans consider whether they are more safe or less five years after the Sept. 11 attacks, one thing is certain: They are being monitored by their own government in ways unforeseen before terrorists flew planes into the World Trade Center and Pentagon. Within minutes of the strikes, U.S. law enforcement and intelligence-gathering authorities mobilized to find the culprits and prevent another attack. They increased the tapping of Americans' phone calls and voice mails.

John Yoo is a professor of law at UC Berkeley. This semester, he is my colleague -- as a visiting professor -- at Chapman University's School of Law. Yoo is also under investigation by the Justice Department's inspector general for his role in producing a number of controversial memorandums during his service in the department during the Bush administration. The memos include one stating that the president may authorize the torture of suspected terrorists. I am a former federal prosecutor.

The Supreme Court struggled Monday with a question that has gone unanswered for years: Does a person on the sidewalk have a right to say nothing when approached by a police officer? In the past, the court has ruled that individuals who are arrested and taken into custody have a right to remain silent. And it has implied in past decisions that people who are not arrested are free to walk away and ignore a police officer.

The Supreme Court said Monday that it would consider creating a new right to remain silent -- this time for people who are stopped, but not arrested, by police. A stubborn Nevada man who was standing along a roadway when an officer approached him will get a hearing to decide a basic question that the high court has never squarely answered: Does the Constitution give a person the right to refuse to identify himself to the police?

In the abstract, there are few civil liberties the average person holds as dear as the constitutional protection against unlawful searches and seizures. But that affection is often tested when the 4th Amendment, like a bolted front door, is all that stands between police and the arrest of someone who officers say is a criminal. That is precisely the issue in what many legal observers are calling a groundbreaking case now before Los Angeles Superior Court Judge Gregory Alarcon.

The Supreme Court narrowed the privacy protection of the 4th Amendment Tuesday, ruling that short-term visitors to a home are not shielded from police surveillance. The 6-3 decision reinstated the drug convictions of two Minnesota men who were observed by an officer who had peeked through the window blinds of a ground-floor apartment. The men, who were seen putting white powder into bags, did not live in the apartment nor were they overnight guests.

Henri Taylor and Jennifer Sari see the issue in starkly different terms. To Jennifer, a junior basketball player at Brea Olinda High School who agreed to be tested for drugs as a freshman, mandatory drug testing of high school students makes sense because "playing sports is a privilege." To Henri, a student at Los Angeles' Dorsey High School, it is a blatant violation of individual rights--"an invasion of privacy," he says.

Henri Taylor of Dorsey High and Bill Scott of Alemany High in Mission Hills see the Supreme Court's ruling allowing students to be tested involuntarily for drug use, in starkly opposing terms. "Personally I wouldn't mind [being tested] at all," said Bill, who will be a junior in the fall and plays on the school's baseball team. "I think it would be good because at least it would help put a stop to people using drugs."

Henri Taylor and Walter Guevara, classmates at Dorsey High School's law and government magnet program, see the issue in starkly different terms. To Henri, mandatory drug testing of high school students is a blatant violation of individual rights, "an invasion of privacy." But Walter says he has observed firsthand how drug users can spoil learning for others, and he would welcome the testing.

In a ruling that could make drug testing commonplace in high schools, the Supreme Court said Monday that students may be forced to undergo routine, random urine tests to see if they are using illegal drugs. The 6-3 ruling upholds a drug-testing program for school athletes in a small Oregon logging town, but it has the potential to clear the way for the routine testing of millions of students--including non-athletes--in the nation's junior and senior high schools.