Kathy Parker was flying from Philadelphia to North Carolina on business. She was flying out of Philadelphia International Airport. As she was going through the metal detectors a TSA agent selected her carry on baggage for an in depth inspection.

Her personal items were spilled out on the inspection table for everyone to see. (The agent asked if the diet pills work?) Checks, in her purse, made out to her and her husband were inspected. The agent claimed that they were in sequential order and they called over the Philadelphia police since the agent claimed that sequentially numbered checks were evidence of embezzlement. For some reason the agent thought that she had emptied her bank account prior to filing for divorce so the agent called her husband to find out if they were going through a divorce.

My bet is that the agent was trying to get a job as a police officer and she was trying “to crack a big case” to show that she was deserving. Of course she found nothing.

But the issue is not what was found but the change that has occurred in out society. The Fourth Amendment states:

The right of the 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, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Of course generally the Fourth Amendment only applies to searches but in this case TSA is working as an agent of the government and is subject to the Fourth Amendment.

Here Parker’s personal belongings were seized and inspected without probable cause, without an affidavit, and without the permission of a judge.

The Fourth Amendment was added to the Constitution in reaction to the British writs of assistance. The writs of assistance were general search warrants issued to assist customs agents find smuggled goods. They were issued without probable cause that evidence of illegal behavior could be found in a specific location. James Otis a Boston lawyer, one of the earlier patriots, developed a reputation by fighting the writs, as did John Hancock a Boston merchant who was the president of the Continental Congress and signed the Declaration of Independence.

The question in the post 9/11 period is how much of the rights fought for in the Revolution are we willing to surrender in order to obtain security. Can we feel safe without searching the diet pills and the personal papers of a 43 year old business woman taking a domestic flight? I’m sure that Otis and Hancock as well as James Madison and who wrote the Bill of Rights based on George Mason’s Virginia Declaration of Rights would have found the risk de minimus and worth taking in order to preserve our fundamental rights.

Alameda County, California Superior Court Judge Morris Jacobson granted the motion of former Bay Area Rapid Transit police officer Johannes Mehserle for a change in venue for his trial for the murder of Oscar Grant who he shot during an investigation of a rowdy incident on the subway at the Fruitdale Station in Oakland.

Judge Jacobson looked at six factors in determining the need for a change of venue. First he considered the nature and gravity of the offense. Since the offense is murder and since Mehserle appears to have committed the murder under color of law the judge found that the facts supports a change of venue.

The second factor is the nature and the extent of the media coverage. In the eight months following Grant’s death there was at least 2000 newspaper articles, 2000 television news segments, 350 radio news strories and and an unknown number of internet downloads on the killing in Alameda County. The quantity and pervasive nature of the media coverage together with polling evidence that shows that 70 per cent of Alameda County residents have prejudged Mehserle supports a change of venue.

The third factor is the size of he county. Alameda County is a large diverse county and therefore the size of the county weighs against a change in venue.

The fourth factor is the status of the defendant. The court found that Mehserle’s status, as a white police office who shot an unarmed African American weighs in favor of a change in venue.

The fifth factor is the status of the victim. The victim’s posthoumus characterization in the press and his personalization by the press, according to the court, favor a change in venue.

The sixth factor is political activity in relationship to the case. The Court found that the extraordinary amount of political activity in the form of demonstrations and riots weighs in favor of a change in venue. There have been at least three major demonstrations that have led to violence ansd numerous other demonstrations. The court staff is afraid of violence during the trial and it may be impossible to find a jury that is not afraid of injury if they come back with a not guilty verdict. Also numerous national and local political and religious leaders have taken a stand and this contributes to a finding that venue should be changed. Considering all of the factors the judge granted the motion for a change in venue.

The next step is to select a California city where the trial can be held. But this may be a problem. In determining whether a defendant can get a fair trial precedent bases the decision on press coverage. With the internet and a world press it may be difficult to find a jury anywhere in California in which the members have not made up their minds in advance. One of the factors Judge Jacobson looked at involved statements by political and religious leaders. These are national leaders and it may effect the selection of a jury in any county in the state. The fact that the defendant is White and the victim was African American will not change in whatever county is chosen.

Moving the trial out of Alameda County, will remove some of the tension around the trial. But it is questionable whether our founding fathers would have approved of moving the trial. One of the issues in colonial America was the patriot’s objection to the removal of the trial of any Crown officer to England. Another issue was the use of the mob to close the Crown’s courts. When you consider Mehserle to be a police officer much like the Crown’s officers and when you consider the colonial mobs to be much like demonstrators today it becomes clear that the writers of the Constitution may not have approved of Judge Jacobson’s order.