Police Power of Search and Seizure - Term Paper Example

POLICE POWER OF SEARCH AND SEIZURE Police Power of Search and Seizure Searches and seizures are necessary exercises in the contemporary society, in their assistance in the pursuit of criminals. They are used in order to provide evidence to assist in the prosecution of alleged criminals. The police are granted the powers of search and seizure but the public, particularly at the personal individual level, are protected against unreasonable and arbitrary police intrusions. In order to guard against arbitrary intrusions by police enforcement officers, there was a ratification of the Fourth Amendment of the American Constitution, which 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.” (Bridegam & Marzilli, 2005) The search and seizure powers of the police in the United States of America are provided for in their Constitution that has undergone changes in order to cater for emerging issues that impact in various ways upon the American society (Bridegam & Marzilli, 2005). The American Constitution provides for the Bill of Rights, which encompass on a myriad of issues affecting the American society. The Fourth Amendment, part of a series of different amendments made on the Constitution over a long period, is responsible for safeguard against searches and seizures that are unreasonable. It also provides for the requirement of a warrant, to be sanctioned by a Court or member of the American Judiciary. There has to be probable cause for the issuance of the warrant by the issuing court. Limitations vary according to the specific information given to the issuing court, by a law enforcement officer (Bridegam & Marzilli, 2005). The highest court in the American land, the Supreme Court, is responsible for the different amendments that have been enacted into Law. Accordingly, it ruled that the Fourth amendment’s protective privileges applied only when the citizenry had ‘expectation of privacy’ that was reasonable. The Supreme Court is also responsible for the ‘legal definition’ of the Constitution. Thus, it put the definition of - “a Search” occurs only when “a person expects privacy in the thing to be searched” and b) “society believes that the expectation to privacy is reasonable.” It deduces the word “Seizure” in concurrence with private personal property (Lambert, 1986). Therefore, seizure of property occurs when the government has meaningful interference with an individual’s personal properties, to be used as evidence in a case before a court of law. The Fourth Amendment protects the individual against unreasonable seizure of persons, including even for brief detention. A person is seized, within the constitutional barriers, only if he/she is “connected to an incident”, or “a reasonable doubt is present that the person is not free to leave” or “when by means of physical force or the display of authority, the person’s freedom of movement is restrained.” (Lambert, 1986) A “Warrant” is a legally binding order, usually written, that is issued by a court of law, or a member of the Judiciary i.e. a magistrate, to enforce lawful search and seizure of evidence. This may be while investigating suspicious activity. The warrant is ‘a writ’ issued by a court to grant the search and seizure of personal property by police. In order to obtain it, the police must clearly provide information that supports probable cause to their belief in finding evidence of a criminal activity in a particular place. He/ she must provide a list of particular places to be searched and of items sought and finally swear to the truthfulness of the information provided. This information the officer then presents, in the form of an “Affidavit”, to a magistrate or judge who determines whether to approve it or not (Bridegam & Marzilli, 2005). There are a number of exceptions to the above i.e. ‘where the society’s greater need outweighs that of the individual and there is no other effective means of meeting the need of society available. An example would be when the Supreme Court allowed for the setup of ‘discretion-less immigration checkpoints.’ Here there may be brief detention applied by detaining motorists. The setup of discretionary checkpoints or other forms of general crime-fighting checkpoints is not allowed. As exemplified in the case of “Illinois v. Lidster 540 U.S. 419 (2004), The Supreme Court allowed for the setup of “focused informational checkpoints.” (Bridegam & Marzilli, 2005) The provisions of exceptions to the requirement of a Warrant are found in Federal and State statutes that authorize for the warrantless, random testing of persons for drugs in sensitive positions i.e. air traffic controllers, railroad employees, custom officials and drug interdiction officers. Here the Supreme Court ruled that public safety needs outweighed the prevailing interests of the private individual. Government administrative agencies may also conduct warrantless searches of those industries that are highly regulated such as the food and strip mining industries. The presence of the “Knock and Announce” requirement incorporates the ‘Common Law’ requiring that, before attempting forcible entry into a dwelling place, the officers must knock on the door and announce their identity and intensions. Other provisions allow for the search and seizure in schools when the consideration of the ‘legitimate need for the maintenance of a conducive learning environment’ is paramount. On computers and privacy, information stored in one’s computer, including at the workplace, are private and confidential but any other information sent to or received by a third party do not fall under this category. This includes electronic communications at work (Bridegam & Marzilli, 2005). The police, in their conduct of a search, are required constitutionally to establish a “probable cause”, in that there is the belief that the search will unearth any criminal activities or the presence of contraband (Bridegam & Marzilli, 2005). Law enforcement officers entrusted with the power to conduct investigations perform searches and seizures of persons and their belongings, make arrests and occasionally use lethal force in the line of duty, are duly expected to exercise this power within the limits of the law. Any excesses on their part jeopardize the admissibility of any evidence that they collect and present for prosecution. This general power of the police may also be termed as ‘State Action.’ The Fourth Amendment applies only to the State Action that is mainly ‘action taken by a government official, on behalf of the Federal or State governments, or at the direction of government official.’ Other related activities by private citizens unattached to government, such as private investigators, are not categorized here (Siegel, 2009). The “reasonable expectation of Privacy” is critical in the extension of the privileges as entailed in the Fourth Amendment. This is to say that individuals are entitled to enjoyment of reasonable expectation of privacy in their own bodies, homes, vehicles, business premises and even personal property (Regoli & Hewitt, 2008). A police officer may only be able to search persons and/ or their personal belongings, provided there is cause/reasonable suspicion of the person being linked to criminal activity. This “Probable cause” entails that the police officer must have in his/her possession, sufficiently trustworthy information to believe that a crime has been committed. Reasonable suspicion, lower than ‘probable cause’, means the officer has adequate information to believe that criminal activity may be at hand. It is usually used in order to justify the brief frisking in public or at a traffic stop by the roadside of a person by a law enforcement officer (Regoli & Hewitt, 2008). Under the guidance of the Fourth Amendment, “Seizure” entails the collection of evidence by law enforcement officers and to the arrest of persons. This arrest pertains to the officer taking the person against his/her will for further questioning or for prosecution. When making an arrest, the officer must read the “Miranda warnings” to the suspect. They entail the provision of the arrestee in obtaining counsel and on his/her right to remain silent. The presence of confessions, given voluntarily, being admissible in a court of law are legitimate after the statute 18 U.S.C.A 3501 was enacted by Congress to overturn the Miranda provision (Regoli & Hewitt, 2008). In response to the perceived threats from crime, drugs and terrorism, the U.S. police have received greater surveillance powers. This has had a great impact in diminishing individual protections as entailed in the Fourth Amendment and affected greatly on social issues affecting civil life (Dempsey & Forst, 2009). Through these expanded authority and reach of the police, there has been an increase in use of surveillance; for gathering information, especially on persons believed to be criminals or terrorists. President Obama’s amendment of the Executive Order 12425, that designated Interpol as being a public international organization that is entitled to enjoyment of certain privileges, immunities and exemptions, elevated Interpol and its activities above the American Constitution and Local enforcement agencies (Dempsey & Forst, 2009). In conclusion, in view of the above, it is critical to note that there are positive outcomes to this power of the police in that there is increased security, especially at highly populated area, thereby boosting the confidence of the citizenry. Conversely, the reduction in individual rights, due to this power is seen as violation of ‘freedoms’ either pertaining to the individual or the society. Reference Bridegam, M. A., & Marzilli, A. (2005). Search and seizure. New York: Infobase Publishing. Dempsey, J. S., & Forst, L. S. (2009). An Introduction to Policing. New York: Cengage Learning. Lambert, J. L. ( 1986). Police powers and accountability. New York: Taylor & Francis. Regoli, R. M., & Hewitt, J. D. (2008). Exploring criminal justice. New York: Jones & Bartlett Learning. Siegel, L. J. (2009). Introduction to Criminal Justice. New York: Cengage Learning. Read More