The Framers knew that the accumulation of all powers, Legislative, Executive, and judiciary, in the same hands, whether of one, a few, or many,’ and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.’ In order to prevent such tyranny, the Framers devised a governmental structure composed of three distinct branches–a vigorous Legislative Branch, a separate and wholly independent Executive Branch, and a Judicial Branch equally independent. The separation of powers and the checks and balances that the Framers built into our tripartite form of government were intended to operate as a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other. The fundamental necessity of maintaining each of the three general departments of government entirely free from control or coercive influence, direct or indirect, of either of the others, has often been stressed and is hardly open to serious question. Commodity Futures Trading Com v. Schor, 478 U.S. 833, 859-860 (1986) (quotation marks, internal quotation marks, alterations, and citations omitted).

The separation of powers is designed to preserve the liberty of all the people. So whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge. Collins v. Yellen, 141 S.Ct. 1761, 1780 (2021) (internal quotes, quotation marks, and citations omitted).

The United States Supreme Court has usurped legislative power, in violation of the separation of powers doctrine, to illegally amend the Fourth Amendment. In doing so, they transformed the Fourth Amendment from a protected constitutional right to a mere privilege that is subject to the whim of judges.

The Fourth Amendment states as follows:

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. (Emphasis added).

          Words matter. Congress used the word “shall” in the enforcement clause of the Fourth Amendment.’ The word “shall” is a mandatory term that deprives the courts of any discretion in the manner in which the Fourth Amendment is to be interpreted or enforced. As such, evidence obtained in violation of the Fourth Amendment cannot be used at trial; to hold otherwise would reward the government for their violation, and further encourage and allow them to continue to violate the Fourth Amendment.

Since the Fourth Amendment was enacted, the Supreme Court has created the exclusionary rule to exclude evidence from the trial that was obtained in violation of the Fourth Amendment. This rule, which is inferred from the enforcement clause, “shall not be violated,” is the only means available to give meaning to this clause, and is necessary to enforce this constitutional right.

Over time, the Supreme Court created several exceptions to the exclusionary rule. In addition, they created a costs benefit constitutional analysis in which they weigh the costs to society versus the enforcement of the Fourth Amendment.

In Stone v. Powell, 428 U.S. 465, 482 (1976), the United States Supreme Court held: “[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained/in an unconstitutional search or. seizure was introduced at his trial.”

In reaching this decision, six, conservative, white, male, Justices considered the “costs of applying the exclusionary rule even at trial and on direct review.” Id., at 489. These societal costs included:

1. “the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence.” Id.
2. “the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on guilt or innocence of the defendant.” Id.
3. “ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty.” Id.
4. The disparity in particular cases between the errors committed by the police officer and the winfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.” Id.
5. “Although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.” Id., at 491.
6. “the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth. Id., at 491.

The Court further added: “These long recognized costs of the rule persist when a criminal conviction is sought to be overturned on [a federal habeas corpus proceeding] on the ground that a search and seizure claim was erroneously rejected by two or more tiers of state courts.” Id.

In sum, these six, conservative, white, male Justices concluded that the costs to society outweighed the benefits of allowing state prisoners to raise Fourth Amendment claims in a federal habeas corpus petition, even if the issue “was erroneously rejected by two or more tiers of state courts.” Id.

Based upon Congress’s use of the word “shall” in the Fourth Amendment enforcement clause, the majority in Stone, and those before and after them, violated their oath of office by exercising discretion that they did not have. If Congress had wanted the courts to have discretion in the manner in which the Fourth Amendment is enforced, they “could have easily substituted ‘may’, for ‘shall’” in the Fourth Amendment. Murphy v. Smith, 138 U.S. 784, 787 (2018). The word “may” is a permissive word that would have given the courts discretion.

In his dissent, with whom Justice Marshall concurred, Justice Brennan concluded that the Court’s “constitutional ‘interest balancing’ approach to this case is untenable, and I can only view the constitutional garb in which the Court dresses its result as a disguise for rejection of the longstanding principle that there are no ‘second class’ constitutional rights for purposes of federal habeas jurisdiction; it is nothing less than an attempt to provide a veneer of respectability for an obvious usurpation of Congress’ Art. III power to delineate the jurisdiction of the federal courts.” Id., at 515.

CONCLUSION

          Based on the foregoing, it is beyond any doubt that the six, conservative, white, male Justices in Stone, and those before and after them, did in fact usurp legislative power when they granted themselves discretion, which the text of the Fourth Amendment specifically prohibits; in the manner in which the Fourth Amendment is to be enforced. In doing so, they effectively amended the Fourth Amendment enforcement clause by replacing the mandatory term “shall” with the permissive term “may” to grant themselves discretion.