The Law on Search and Seizure - Term Paper Example

?Search and Seizure: an argumentative essay The Bill of Rights was made to protect the national rights of liberty and power. It is to ensure equalityand that no person’s right is violated by another act or commission. The world has evolved intellectually in so many ways and thus everything that man does is enforced with knowledge and even more knowledge to defend it. Over the years man has become more and more free and was able to accumulate rights and capabilities based on one’s free will but must never cross over another man’s rights and capabilities. Freedom has its price as the famous quote implies truly, because one cannot be free without complying with the rules and regulations set upon by the norms and the laws of man. Thus being free has its boundaries, boundaries that end when it crosses upon the right of another. The law makes it sure that everything in the social arena is kept into place and no person is below or above the system. Hundreds of laws, act, proclamation and amendments were made and approved by man in ill parts of the world so that every citizen must have something to abide by and keep them from the boundaries of crossing over the border of their freedom. With all these laws made and passed; reviews, controversies and intellectual battles took over and continuously takes over to assess and reassess the efficacy, efficiency and necessity of such law. One of the most controversial and argumentative laws ever made is the law of search and seizure. This paper is to state clearly an argument on whether search and seizure and racial profiling should be banned more than accepted in the United States. This paper will discuss briefly and will point out arguments based in the author’s full understanding of the provision of this law. Over the past years the conflicts on power and authority has been a controversy especially with incidences of abuses with the use of authority, most common example are the policemen and other law enforcing authority, in implementing order in the land. Incidences like police brutality, unauthorized search and arrest, illegal collection of evidences and planted evidences to frame up some innocent are just some of the negative feedbacks the society has over the authorities. These feedbacks can also be deemed as the reasons why an argument is posed over the law on search and seizure implementation over United States of America. On whether it is efficient, beneficial and lawful to implement just the way it was planned for or is it unnecessary, unjust and should be stopped and banned. Although it has been made to check on these irregularities on authority misconduct still some flaws have questioned its validity as a law that some people are asking to nullify it. Before going to the issues of why or why not the law on search and seizure should be banned in America, it is proper to discuss on some key notes of the said law. Moreover, search is defined in the provision of the fourth amendment as, looking for evidence or a person involved in a crime by a law enforcement officer in a place where they have a reasonable expectation of privacy while seizure is defined as taking possession of a person or object by a law enforcement officer or agent (Department of Public Safety Law enforcement Academy 2012). Search and seizure is a controversial term of legality. Going through its definition, it implies lawful examination of a person’s property and things by a law enforcement officer although it does not imply specific circumstances but rather connotes that every law enforcer has the authority to go over a person’s things without any chance of refusal because it is what the law states. And provided that something that can be regarded as evidence is seen, the authority as well has the right to seize it for legal prosecution (Department of Public Safety Law enforcement Academy 2012). The conceptual framework of search and seizure is based on good will that is to allow lawful hunt of law breakers by seeking evidences that can be available to prove that these people have broken the law and must be legally prosecuted to ensure peace and order. But this act of goodness can have ill side as well. By the provision of the search and seizure, every property can be searched upon if the authority has felt that something is suspicious thus everyone can be deemed as a suspect and can be arrested and can be placed under investigation even just based on suspicion. Therefore many of an individual’s rights can be violated by the search and seizure provision that is why movements to abandon it plagued from every human rights sector. There are many reasons why people question the validity of search and seizure law. First, the need to abort search and seizure is due to the violation of the right to be deemed as innocent unless proven otherwise. The implication of being deemed as suspect and an unlawful person has its psychological and social effects. Somehow if a person’s property is searched there will be a negative implication among the neighbors that the person must be of bad character hence social esteem is affected. Second is the right to privacy. Privacy is a very important issue in the world today. Every person wants his own personal space where a person can enjoy the luxury of his personal life. In the provision of search and seizure the person’s right to his personal things and belongings is violated since the authority have the rightful position to search among a person’s things regardless of the person’s conviction. For example, a person is accused of terrorism and so his place was searched by the law enforcers from corner to corner going through all of a person’s stuff. The authorities can even claim a person’s personal phone and have a person’s personal calls and conversations can be placed as subject to investigation and thus will be browsed and reviewed even if the person is against it. With the fear of the above mentioned violation of human rights the law has now amended something to equate the provision from deviating to the ill side of it thus is the promulgation of the Bill of Rights. The Fourth Amendment in the said bill addresses the search and seizure provision or also known as the search and seizure amendment that protects the right of the people to be secured in their persons, houses, papers, and effects, against unreasonable searches and seizures (Hornberger 2005). The most important thing to remember in the fourth amendment is the requirement of the warrant before a search and seizure can take place. It takes a Judge to issue a warrant and it always must be obtained unless the facts fit one of the exceptions established by case law or else the evidences that will be collected will be null and void and cannot be used on a trial as actual evidence. The amendment of the search and seizure law protects individuals and the society from any unlawful use of authority in seizing and searching any personal property. The fourth amendment is brilliant checker on illegal search and seizure that could be done anytime by any authority. Its provision facilitates lawful and systemic ways of conducting search and seizure procedure (Department of Public Safety Law enforcement Academy 2012). On the same manner, racial profiling is a concept associated with search and seizure and had gathered too many arguments on its promulgation as a law. Racial and ethnic minorities together with human rights and social enthusiasts have questioned the righteousness that goes along with it. To clearly define social profiling according to Professor David Harris of the University of Toledo College of Law, a leading expert on racial profiling, criminal profiles are a set of personal and behavioral characteristics associated with particular offenses that police use to predict who may commit crimes in the future, or identify what type of person may have committed a particular crime for which no credible suspect has been identified or eye-witness description provided. Criminal profiling becomes racial profiling when these characteristics include race, ethnicity, nationality, or religion (“Racial Profiling”). For a humanist and socialist person who aim for equality, social profiling is a dispute. Alongside with the social revolution, the author has cited several reasons on why social profiling must be banned as a law or should be called a lawful human act. First, a person’s character should not be based on race. There is no definite characteristic of a race that should be attributed to all its members. Since the 9/11 terrorist attack it is unlawful and a racist act to call a person of Middle Eastern decent a terrorist. Humans as intellectual beings are more than just mere judges of character. Character and attitude are skin deep and should not be based on ethnicity race or gender. Secondly, in a multiracial and diverse society as the States of America like New York, the idea of racism and is absolutely null. Social awareness has brought upon equality in mankind regardless of sex, gender, race and status in general. Although there are some isolated cases that are still noted at least the general idea in a free and democratic country like America is that no one is above or below no one as a person. Third, Racial profiling violates human rights because it is discriminatory. Every person should have the right to be deemed as free and innocent. Taking a person under custody just because of his Latin decent is misjudging. Fourth, racial profiling only delays justice. When the offender does not fit the profile, enforcement efforts are spent chasing down the wrong suspects. For example, the Beltway sniper cases that occurred near Washington D.C. in 2002. During then, the police didn't have many clues, so the authorities have relied on national profiles of a typical sniper-- one white guy, gun collection, probably a van. But the end result is completely different: two black guys, one rifle only, in a large modified sedan. As what was early discussed, character should never be based on characteristics such as race because no two person is alike even if they share the same genes one person still differs from his siblings. So racial profiling is never accurate but will only mislead the search for the real character (“Racial Profiling”). Another reason why racial profiling should be banned is that it argues and is very inconsistent with America’s core constitutional principles of equality and fairness. According to the American Civil Liberties Union (2004), law enforcement based on general characteristics such as race, religion and national origin, rather than on the observation of an individual’s behavior, is an inefficient and ineffective strategy for ensuring public safety. Ethnic profiling also alienates the communities whose cooperation is essential to the gathering of good intelligence. In addition, bias based profiling – because of its lack of specificity – wastes resources and ineffectively allocates funds and personnel (ACLU 2004). According to Harris (2002) race and ethnic appearance are very poor predictors of behavior. Racial and ethnic profiling caused police to spread their enforcement activities far too widely and indiscriminately without having the assurance. The results of this misguided effort have been disastrous for law enforcement. This treatment has alienated African Americans, Latinos, and other minorities from the police that could have been sources of support to fight crimes of all forms. But since they have misjudged these minorities support is no longer solicited. On a similar context, the Civil rights organizations have cited three points on racial profiling in its report titled "Wrong Then, Wrong Now, Racial Profiling Before & After September 11, 2001” that arguments against traditional profiling apply to terrorism profiling. First, terrorism profiling, like traditional profiling, is based on broad and inaccurate stereotypes about the propensity of certain racial, religious or ethnic groups to engage in particular criminal activity. Second, profiling in the terrorism context is no more useful as a law enforcement tactic than profiling in the street-crime context. Anti-terror profiling, like traditional profiling, is a crude and inadequate substitute for behavior-based enforcement. Third, like traditional profiling, anti-terror profiling alienates communities that otherwise are natural allies to law enforcement. Thus the author is one in conviction with the organization that the similarities between traditional profiling and terrorism profiling make clear that all manifestations of racial profiling are wrong and should be banned. The law on search and seizure is complex and constantly changing and the Fourth Amendment amends on the right of the people to be free from unreasonable search and seizures (Department of Public Safety, 2012). Although it has made a mark in the history of the man’s civilization and social evolution, critiques of the said law cannot be avoided. After careful reading of the references and resources the author of this essay has gathered possible and probable reasons why the law on search and seizure should be banned in America especially in New York. The author’s conviction on search and seizure as well as the fourth amendment are as follows: First, the chances of getting the suspect red handed decreases while whiling away time waiting for the search warrant to be available. The warrant will be coming from the judge and the discretion to allow search and seizure still has to be decided. This will take longer hours of waiting before any lawful search activity and the chances of having the criminals be caught in the act decreases as well as the chances of having the evidence seized. On the contrary if the search will be made without any warrant legal implications are even more dismaying. Second, both instances of unwarranted and warranted searches, planting of evidence in a person’s home or property can easily be done to frame a person up. For example, a cop showed at a person’s place showing a search warrant and rest assured that the house was free of any crime he did not commit, allowed this group of cops roam around his property. An odd situation of planting evidence may happen if one or all of the authorities searching the place intentionally planted some evidences that would make a person seem to be guilty of the crime he did not commit. Thus by using the lawful process an unlawful outcome can happen. Third, even though criminals are caught in the act with evidences present in their home or in any place under a person’s stewardship but if the collection of evidences, according to the provision of the law, is not proper the evidence collected will be nullified and cannot be used against the accused even if all circumstances points to that person as the suspect. Hence due to this more suspects are freed due to lack of evidences that could have proven the perpetration of the crime or worst the case can be dumped. Fourth, common-law right to inquire in New York implies that police may not simply ask questions to anyone, in the absence of some concrete basis for doing so.  Even in the presence of a well-grounded level of suspicion justifying approach and questioning, police may still lack the power to seize the suspect thus suspects can get away easily. Fifth, requesting of information for the sake of public safety in New York is very limited because police intrusion to inquire must have a valid reason. Any person questioned and feels that he is being suspected and stopped also has the right to file a suit if that person felt his rights are suppressed even if it was only to search for a criminal on the loose. The overlapping rights of the search and seizure law and other laws to prevent its abuse are only making criminal investigation more complicated and thus must be better removed. Sixth, common law right to inquire suppresses information that could lead to further investigation and solving of crimes. That in fact a person who understands that it is only being done to solve a crime would have not reacted differently even if he was suspected and questioned. It would not be much of a problem if a person’s conscience is clear of the suspicion. Seventh, racial profiling should also be banned as a lawful practice based on the reasons mentioned above by the author. But on the contrary downsizing the search to a race, which is deemed racist, could also save time if descriptions are accurate that perpetrators belong to such race questioning would not be a problem if people take it as a lawful act only to find a criminal. Lastly, under the virtue of search and seizure police officers may be able to do a warrantless arrest just according to probable suspicion that can be based on hearsay. They may be able to stop and frisk a person according to the belief that the person is committing, having to committed or have committed a crime already. Every person has his rights, the right to freedom and liberty in action as well as the right to have an identity unique as an individual with distinction and not as a mere part of a group. Search and seizure and racial profiling are indeed made in good faith that is for the betterment of the social system but even if acted on good faith it is never an assurance that the outcome will also be good. This is the very reason why man is always subjecting himself to trial and error situations. If the effect is still desirable then it can be continued but should still be continuously reevaluated over and over again as time goes by to assess the efficacy and efficiency of such actions and if still applicable to modern times. Just like the search and seizure that may have been effective since it started years ago, the changes that have happened over the coming of years no longer deem it alone as reliable hence some modifications were made such as the promulgation of the fourth amendment of the bill of rights that answers to the violations that could arise with the search and seizure legality. On the other hand racial profiling could have helped solved crimes of the past, but the modern word of social diversity and equality equates all people in one line regardless of race and gender. This means that social stereotypes is no longer acceptable once cannot be judged nor labeled according to skin color and the right and opportunities were made equal regardless of sexuality or race. Humans as intellectual beings looks over the judgment of character because physical features does not tell a person’s character hence judging based on character is null and void. The legal and social impact of search and seizure has made crime solving and human rights even more complicated and based on the above reasons stated on the even more complicated brought about with its promulgation and hence should be lifted. The very concept of the word authority, referring to law enforcers, to ask questions and held a person deemed a threat to public safety should not be taken by anyone as a suppression of rights especially if people understand that these people are only trying to protect safety of the public. But with the recommendation to lift such controversial law is also to enforce that authorities should never exceed the limits of authorization granted for safety and every person still have to undergo due process to prove the suspicion otherwise. Work Cited ACLU (2004) "Sanctioned Bias: Racial Profiling Since 9/11. Retrieved from: http://aclu.procon.org/view.answers.php?questionID=000698 Civilrights Organizations (2005) "Wrong Then, Wrong Now, Racial Profiling Before & After September 11, 2001.’ Retrieved from http://aclu.procon.org/view.answers.php?questionID=000698 Department of Public Safety Law enforcement Academy (2012) SEARCH & SEIZURE IN NEW MEXICO. Retrieved from: http://www.nmlea.dps.state.nm.us/legal/documents/Search_and_Seizure_without_a_Warrant.pdf Harris D. (2002) Flying While Arab: Lessons from the Racial Profiling Controversy. Retrieved from http://aclu.procon.org/view.answers.php?questionID=000698 Hornberger J. (2005) The Bill of Rights: Searches and Seizures. The Future of Freedom Foundation. Retrieved from: http://www.fff.org/freedom/fd0410a.asp Racial Profiling and the Arizona SB 1070 Law: pros and cons analysis (2012) Retrieved from: http://kschang.hubpages.com/hub/Racial-Profiling-and-the-Arizona-SB-1070-Law Read More