Entry by force puts focus on 4th Amendment

April 23, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

The "enforcement action" -- Attorney General Janet Reno's phrase for the raid on a Little Havana home to retrieve Elian Gonzalez -- was a display of the federal government's sometimes awesome power to act as policeman. That power may be greatest in enforcing immigration law.

Forcing entry to a home would raise serious constitutional issues in normal police activity. But government officials were convinced that making that kind of action in an immigration case was within their constitutional authority.

The Fourth Amendment protects private homes from "unreasonable searches and seizures." But the Supreme Court has made clear that whether a search violates the Fourth Amendment depends upon whether people have a right to expect privacy in the place being searched. A home usually enjoys the most privacy.

But the Justice Department's view in Elian's case was that his great-uncle Lazaro Gonzalez's home was not entitled to privacy while it remained the place where an alien child with no legal right to be in the country was being kept with government permission. Thus, the reasoning went, the home could be entered at any time to retrieve the boy once Lazaro's right to temporary custody ended and he refused to turn over Elian.

"There was clear defiance of the law," Reno explained. The forced entry at gunpoint came, she said, only when the Miami relatives left "no other option."

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