The Nature and Quality of Intruding to an Individuals Rights - Essay Example

TERRY V. OHIO Background information In the United s Fourth Amendment of the constitution arrests are part of its requirements with the courts upholding common law giving police officers the right to take an individual into custody with a warrant if with a probable cause of believing that the individual has committed a misdemeanor or a felony in their sight (Zhang, 2014).  I purpose to candidly discuss this issue and the Bill of Rights pertaining this topic. Generally, law enforcers need to possess a warrant to conduct a search into a person’s home or personal effects. As enshrined in the fourth Amendment of the U.S. constitution, every individual is entitled to privacy concerning their personal property and other effects. In the contrary, the Exclusionary Rule suppresses evidence in instances where proper protocol was ignored. Furthering that, in absence of a search warrant only emergency situations and plain sight can permit unreasonable search. I will detail my explanation on the application of criminal investigations and the justice system. Introduction The most fundamental role of the American justice system with its complicated process and procedures is to peace maintenance through dispute resolution. This is possible in the federal state through application of the law through specific persons or institutions. The state and federal constitution forms the supreme source of the applicable law with reference to the statutes and administrative regulations as other sources. In the constitution, the structure of the government, the definition and limitations of power in the protection of citizens from unlawful acts are outlined. Origin of the probable cause The terry V. Ohio case decided in the United States Supreme Court set precedent on stop and frisk aspect. After this the next proof level was called the probable cause.This is where there is good reason or probability of linking an individual to a committed crime or involvement in a committed crime. Probable cause has seemed to be more significant in criminal cases because this is where individuals are searched and arrested depriving them of their liberty. Nevertheless, in civil cases the suspect’s property can be seized without denying them their liberty freedom. This argues the reason why the law enforcement agent or police officers need to have a probable cause when carrying out a search or undertaking an arrest. No absolute certainty is needed for an officer to make an arrest or search but a probable cause of suspicion. From practical experience the police officer, upon sensing a weapon may search the car suspected to carry the weapon with a probable cause even though unwarranted under the Fourth Schedule. Equally, under the case of Terry V. Ohio, the law officers may only carry out a search for external clothing for the purpose of ensuring the safety and for investigation in search for the hidden weapon. To argue the Fourth Amendment shortcoming on searching vehicles, the officer could have made a record in his report that the driver had made a furtive movement or that the law enforcer observed a handgrip of a pistol protruding beneath the passenger seat The courts apply the laws in place as opposed to creating new ones. However, the legislature and the administrative organs cannot forecast every probable circumstance and the laws do not offer vivid solutions for each case. This means that the law is vague with intent in giving the courts flexibility in interpretation in a manner, serving the general public policies contrary to attaining specific outcomes. In the case of Terry V. Ohio, the following aspects can be discussed. Stop and Frisk To frisk someone entails searching of the person’s outer clothing through running a hand on outer garment to detect any hidden weapons by a police officer or law enforcing agent. In the Terry V. Ohio, the united States supreme court held that the police had the authority to carry out a limited search for weapons in case of suspicion of an armed or dangerous person who has been stopped (Zhang, 2014). When authorization for search of weapons is given, the procedure is called a stop and frisk. A brief authorized detention of a suspicious individual less than probable cause is said to be a Terry stop. In justification of the stop, the police officer must have reasonable grounds of suspicion that a criminal act has been, is being or about to be done. If the law enforcement agent has reasonable suspicion that the suspect possess that may cause danger to the officer or others, the officer may frisk the suspect in search for the weapon. If the identity of a contraband discovered in the process of pat down is apparent, he or she may be seized by the police pursuant to the plain feel doctrine. Search and seizure This is a legal terminology used in describing the examination of person’s home, vehicle or business by a police officer or a law enforcing agent in search for evidence of a committed crime. Upon access to the evidence the person is said to be under arrest and the property under consideration seized. The constitution of the United States under the Fourth Amendment protects the citizens’ right to privacy through prohibitions to unreasonable intrusions to personal properties of individuals (Zhang, 2014). In upholding these rights the federal court and the legislature instituted legal safeguards allowing interference of the Fourth Amendment rights only given critical specific conditions. In the Fourth Amendment, unlawfully seized items are being prevented from being used as evidence in any criminal case. The discretion as to the extent of protection rests upon the nature of the arrest, the nature of the search and prevailing circumstances. A valid search and arrest warrant is mandatory to ensure execution. The exception to the above is that, if there is a voluntary consent to the law officer, the search is deemed to be legal and in a situation where a third party in charge of the property gives a go ahead. An officer may also conduct a search if he lacks a warrant, but has a probable cause, believing the individual did commit a crime. Exclusionary Rule The federal constitution recognizes the exclusionary rule on the premise that unreasonable searches and seizures should not be used against a suspect in any criminal prosecution if the suspect’s rights were violated by illegal seizure of property. This rule was advanced for exclusion of evidence violating the defendant’s rights enshrined in the Fourth Amendment which offers protection against unreasonable seizures and searches by law enforcers by excluding such evidence from trial. However, in the event of unavoidable circumstances, this evidence can legally be obtained. For instance, if an armed felon flees to his area of residence and the officers after him discovers drugs lying in plain view, the drugs will be included as part of the evidence. In the event that the suspect is apprehended, the drugs constitute sufficient probable cause to seek a warrant to search the suspect’s premises for additional evidence which will be used in the court of law against the defendant. Arrest When the law enforcement officer has sufficient information to believe that to raise suspicion of crime committed the suspect will be put under arrest. When the suspect is under arrest, he or she is demanded cooperation to smoothen the process of determining if he is guilty or innocent. As discussed in the sixth amendment, the suspect should be read their Miranda Rights to an attorney in case he/she lacks legal representation. One can be booked for interrogation and it’s necessary for suspects to know that they have a right to maintain silence and awaiting his interview attorneyplay (Zürn and Peerenboom, 2012). The role of the investigator is just gathering information to be used against the defendant. The investigator captures the suspect in a friendly manner to make him give information, but the suspect should maintain silence. One should always be alert of the avenues used by the investigator as he will try to use all means to obtain information even using the suspect’s family, job and life to leverage. Misdemeanors vs. Felonies Misdemeanours refer to a crime punishable with a year or less imprisonment in while a felony has a potential punishment exceeding one year in a state prison or even death. Crimes such as infractions are punishable through fines, but can still qualify to be classified under misdemeanors. The Terry Vs Ohio crime qualifies to be treated as a misdemeanor as it involved concealed weapons with other examples in the category being driving while under the influence of alcohol and petty theft without excluding prostitution and vandalism. Felonies also have fines imposed for offenses with common examples of the offenses being robbery, murder, and rape and drug possession and trafficking. Most of the misdemeanor offenses are bargains to lessen the legal representation costs and other court costs and can even avoid jail terms When a law enforcer accosts a person and restrains his freedom of walking away, he is said to have seized that individual. Exploring the outer surfaces of an individual’s clothing in search for weapons does not amount to a search. It amounts to indignity and a serious intrusion to the sanctity of a person, especially when done in helplessly in the public. The distinction between ‘stop’ and ‘arrest’ or seizure and ‘frisk’ and ‘search’ is the effort to put isolation of the contact between law enforcement officers and citizens from the scrutiny of the constitution. The court had ruled that a reasonable search at its inception may constitute a violation of the Fourth Amendment owing to its intensity which is not tolerable and its scope. On the other hand, the distinction of the terms may be used to divert attention from the reasonableness in total circumstances inquiry under the Fourth Amendment and thus meaning the search and arrest aspects come into play (Zürn and Peerenboom, 2012). In deciding whether the actions of the police officer were unreasonable or not, the officers should possess a warrant authorizing them to carry a search as outlined in the constitution. However, this notion underlying the warrant and the probable cause are of relevance in this scenario. By focusing on the interest of the government justifies the officer’s intruding into the private interests which are protected by the constitution and thus arguing that balancing the need for search and seizure pertains the reasonableness test for the law enforcing agents. The arresting officer should also exercise good faith in line with protection of the Fourth Amendment. Employing the government interest to prevail entails the prevention of crime and its detection, which the fundamental role of an officer. The officer then was discharging his mandate in his decision to approach Terry and his friends. It is usual for two men to stroll up and down in a street or even standing in a given corner perhaps waiting for someone and in fact the store windows are to be stared. But in this context, they took more time hovering around with frequent stares into the store window raising suspicion. It was prudent for the officer of much experience as 30yaers to investigate this behavior. The decision of the officer to investigate Terry also posed a risk to the officer’s security in the process of trying to perform the government function since there was probability that they might have turned against him. In lieu of these facts, the officers cannot incline themselves to the issues of enforcing laws in circumstances where they lack a probable cause for an arrest. There is justification that individuals with suspicious behavior be investigated closely to determine if he is really armed and the police given powers to neutralize any exposures to physical harm. However, of importance is the nature and quality of intruding to an individual’s rights if the officers are to be given the right to search for weapons in circumstances where probable cause of arresting lack and even a mere search on outer clothing amounts to a humiliation and annoyance. Nevertheless, this line of reasoning possesses two challenges, first it does not take into account traditional issues in the scope of searches in thus has no recognition of the difference between purpose, character and extent of search and arrest. Second, it makes an assumption that an arrest law has balanced the interests under consideration. An arrest forms an initial prosecution phase with a vindication of law abiding society through interference of an individual’s freedom of movement (Zürn and Peerenboom, 2012). In conclusion, when the law enforcement officer seized Terry (the petitioner) there was properly admitted evidence against him. When he searched him for weapons the officer had a reasonable premise to believe that he was armed and it was necessary to ensure that he protects himself and others by taking swift actions preventing the outcome from materializing. The officer limited his search to discovering particular items he was seeking. Cases of this nature will thus need to be decided on the basis of facts. I can hold that a search is reasonable on the basis of the fourth Amendment, when a police officer observes an unusual conduct leading him in concluding in good faith and owing his experience that the criminal activity may be a avoided and that he is dealing with an armed, dangerous person and reveals his identity as a policeman in his investigative course with an aim of protecting himself and other citizens in detection of weapons. In addition, this was a violent crime were it that the officer’s suspicion was correct and it was worth it searching the men and the men were not detained for a reasonable time period to constitute an arrest. References Zhang, A. (2014). The origins of African American civil rights movement, 1865-1956. New York: Routledge Zürn, M., Nollkaemper, A. and Peerenboom, R. (2012). Rule of law dynamics: in an era of international and transnational governance. Cambridge New York: Cambridge Read More