The right of the people to protect their homes from illegal search by authorities stemmed from the colonial era. In the case of Samayne, decided in 1603, the right of any person to protect their houses from unauthorized entry was acknowledged (Find Law for Legal Professionals, 2008). However, the case also established the right of the King’s agents to enter any subject’s home, provided that proper procedures are applied. The maxim, “Every man’s house is his castle,” summarized the decision of the court (Find Law for Legal Professionals, 2008).
The maxim was internationally recognized as it upheld the right of homeowners to their own houses. Eventually, the framers adopted the policy laid down in decisions in England and inculcated in the Bill of Rights. From there on, authorities were not allowed to enter and search another’s house without a prior valid notice. The Source of search and seizure The law that sets out search and seizure and its procedure is contained in the Fourth Amendment of the Constitution which provides,
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 (Find Law for Legal Professionals, 2008, n. p. ). According to the cited provision, citizens are assured of their right to privacy and right against arbitrary searches by government authorities (Belknap, 2004).
At the same time, the provision sustains the right of peace officers or police authorities to enter one’s dwelling to make search and seizure by virtue of a warrant. In addition, the provision laid down the guidelines that police officers must comply when making searches or arrest. If the standards provided in the law are not abided by the police officers, the case of the government against the person who had been searched would be weakened. Even strong evidences taken that can establish the guilt of the accused would be nullified. This shows how important compliance to the fundamental elements of search and seizure is. Search and Seizure
It is fundamental that before an officer conducts search and seizure, he must be armed first with a valid search warrant. A search warrant is defined as “an order in writing, issued by proper judicial authority, in the name of the people, directed to a law enforcement officer, commanding the officer to bring that property before the judicial authority named in the warrant” (Ferdico and Hemmens, 2008, p. 212). From the definition, it is stated provided that only officers from the judiciary can issue a warrant. Such officers include the clerk of court, magistrates, justices of peace, judges, and complaint justices (Ferdico and Hemmens, 2008).
Thus, a warrant issued by any officer not mentioned bears no effect. Moreover, in the case of Shadwick v. City of Tampa (407 U. S. 345), the officer issuing a warrant must be neutral and detached; he or she should also have the capability of determining the presence of probable cause. Significantly, from the provision of Fourth Amendment, before a warrant is issued by the judicial officer, the existence of probable cause must first be ascertained. Hence, basically, the heart of a search warrant is the probable cause. Without probable cause, there could be no valid warrant. The definition has been defined in the case of Dumbra v.
United States, (268 U. S. 435), wherein the court stressed that, “reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the party is guilty of the offense with which he is charged” (268 U. S. 435). Although the definition has been used in arrest warrant, it could have an application wherein the only difference is that the things to be seized are in the place to be searched. It is important to indicate the probable cause in an affidavit submitted by the police officers or authority seeking for a warrant.
In establishing probable cause, several things can be done to support it. One of the ways is to present reliable witnesses who can testify that the things to be searched are in the place indicated in the affidavit. Another ways is to specify the limits or scope of the place and things to be searched. Notably, some warrants have been invalidated for indicating general or wide place and things to be searched. This will also help the judge to infer that the officers have strong evidence on the existence of probable cause.
Finally, the police officers shall not base his belief on mere hearsays or rumors and should not rely on anonymous source, as the judge will only disregard the request. The case of Aguilar v. U. S. (378 U. S. 108) presents probable cause that was not fully established by the officers. In this case, the judge issued a search warrant based on the officers’ affidavit stating, in part: “they have obtained information from a credible person and believe that a heroin… and other narcotics… are being kept in the described premises” (378 U. S. 108).
However, on appeal, the court found the warrant as insufficient of probable cause. In resolving the issue, the court held that the judge issuing the warrant should have been informed of essential circumstances relied upon by the person who gave the information, even if the affidavit was based on hearsay (378 U. S. 108). In addition, the officers should have provided supporting facts that will prove that the informant was reliable (378 U. S. 108). On the other hand, the basis of probable cause in the case of United State v. Ventresca (380 U. S. 102) was found by court to be sufficient.
In the affidavit of the police officer, they stated that they have probable cause to believe that an illegal distillery is being operated based on their own observations (380 U. S. 102). They also detailed, in particular, the substantial result of their observations (380 U. S. 102). Thus, the court held that a detailed and specific affidavit has fairly established sufficient probable cause. Furthermore, the Constitution mandates that the probable cause should be supported by Oath and Affirmation, done personally by the officer seeking for the search warrant.
Furthermore, it is essential to note in the affidavit the particularity of the place and specificity of the things to be searched. In several cases decided by the court, notice to the owner about the search is a fundamental element of Fourth Amendment. This was supported in Ker v. California (374 U. S. 23), where the court regarded announcement as an element of search and seizure (374 U. S. 23). The officer making the search should also disclose his identity, position, and his purpose to the owner of the place to be searched.
However, announcement may not be made where threat to physical violence would likely occur, or when the announcement would result in destruction of evidences (Find Law for Legal Professionals, 2008). Impact of terrorism on Search and Seizure standards On the above stated grounds, the Constitution mandates that fundamental standards of search and seizures be strictly complied with. However, at present, the standard seems to have been being infringed by the government.
After the 9/11 attack, the government had been imposing policies on strict regulation of the citizens communication and personal belongings of those traveling. The government also enacted laws that bestow power to the federal authorities the power to intrude into one’s privacy to obtain information associated with terrorism. One of the enacted policy or law is the “Uniting and Strengthening America by Providing Appropriate Tools Required to intercept and Obstruct Terrorism Act of 2001” or commonly known as USA Patriot Act (Bullock, Haddow, & Coppola, 2006, p. 41).
According to the Act, the federal authorities can conduct several surveillances on persons suspected of terrorism. By virtue of the Act, FBI agents can also acquire a warrant from a magistrate secretly to secretly search the office or house of any person suspected to have connection with terrorism or terrorist groups (Bullock, Haddow, & Coppola, 2006). Significantly, the Act also authorizes federal officers to conduct surveillance and tracking of the internet usage, e-mail conversations, and even bank transactions of the suspects through a search warrant obtained from a magistrate secretly.
Through this authority, several Constitutional standards on search and seizure would be defeated. First, when the search is done secretly, the requirement that search should be announced is breached. In addition, the right of the owner of the place or establishment being searched to check the particularity of the place is violated. Abuses would likely result, as the person making the search would extend beyond the place indicated in the warrant. Second, the sufficiency of circumstances establishing the probable cause is tainted with doubt, as it was based only on suspicions.
Finally, having all these tolerated the protection or security of the citizens against illegal search and seizure afforded by the Constitution would be transgressed. Conclusion Since the colonial period, the right to privacy of individuals has been recognized and respected, as it had been said that one’s own dwelling is sacred. The government, on the other hand, can intrude into one’s own dwelling if necessary. Every citizen has the right not be searched by government authorities, but at the same time, the government has authority over such right. The boundary lies within the Constitutional provision of search and seizure.
If the officer obtained a valid warrant, the right to privacy of an individual can be validly suppressed by the police authority. However, search warrant should not be arbitrarily issued, and the facts or evidence that will prove the existence of ground that the things or items to be searched are in the place shall be proven. Any deviation from the fundamental standards of search and seizure would be deviation from justice. At present, the government policies on terrorism have a great impact on the citizens’ right to privacy and security from illegal search and seizure.
This is because the federal authority can secretly obtain evidences against a suspect without the latter’s knowledge. In addition, there is no assurance if the warrant was valid and if the probable cause was sufficient enough to justify the search. Even if the warrant could have been issued validly, the right of the suspect to be assured of the certainty of the items seized and the place searched would be likely violated. Thus, the government policies, in line with its goal of suppressing terrorism, have a drawback on the citizen’s right guaranteed by the Fourth Amendment.