Term Paper on "Criminal Investigation and the Fourth Amendment Search"

Term Paper 5 pages (1564 words) Sources: 4

[EXCERPT] . . . .

CRIMINAL INVESTIGATION AND THE FOURTH AMENDMENT SEARCH & SEIZURE PROTECTIONS

It can be argued that the foundation for community support for law enforcement is in the trust built by faith that the police will follow the law and adhere to the U.S. Constitution. For example, criminal investigative questioning must be guided by Fourth Amendment search and seizure protections. Harsh or questionable investigative methods may be unethical and illegal. This work will discuss whether the concern for homeland security has redefined acceptable or ethical criminal investigative tactics used by law enforcement. Explain what impact changes in criminal investigative techniques and methods may have on police-community relations, criminal prosecutions, and the ability of police to investigate major crimes.

Overview of the Fourth Amendment

The Fourth Amendment is a restriction on the government's power and serves to protect citizen privacy. When the citizen's privacy has been invaded by the government then a search is held to have occurred. When a citizen's right shave been violated that citizen may "obtain the relief of the exclusionary rule." Argo, 2006, p.87) The Fourth Amendment states specifically 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 Warrant shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched and persons or things to be seized." (Wecht and Rago, 2006, p. 87)

II. Fourth Amendment Violation by the Government

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The work of Sher (nd) entitled: "Travel at Your Own Risk: The Government Does not Need a Warrant When it Investigates American Citizens Abroad" states that the Second Circuit issues an opinion in the case In re Terrorist Bombings of United States Embassies in east Africa and represents the first time an appellate court held that the government is note required to have a warrant when conducting a search and extraterritorially when that search and seizure affects an American citizen. Sher states that in doing so "the court sanctioned the government's practice of conducting searches and seizures abroad without first demonstrating probable cause to an impartial magistrate." (nd, p.1)

III. The PATRIOT Act

The instance reported by Sher is only one of the noted violation of the fourth amendment which has taken place since the September 11th, 2001, attack in New York City. The National Security Division (NSD) which was created through the reauthorization of the PATRIOT Act in 2006, "consolidate the primary national security fuctions of the Department of Justice: Counterterrorism and Counterespionage, the Office of Intelligence Policy and Review and the new Law and Policy Office." (nd, p.1)

In 2001 when the PATRIOT Act was voted in only one senator approved this and in 2006 opposition to the PATRIOT Act is reported to have "increased ten-fold and a bipartisan group of 52 senators filibustered the Reauthorization. In the House, bipartisan majorities supported checks and balances to limit the reach of the Act. (Allabout.Gov.com) The 'Domestic Security Enhancement Act' or "Patriot I" is reported to have been rejected by lawmakers.

The work of Susan N. Herman entitled: "The U.S.A. PATRIOT Act and the Submajoritarian Fourth Amendment" states that the PATRIOT Act is of the nature that provides the executive branch with "retrofitted tools to investigate terrorism." (2006, p.67) The Congress is reported to have recognized that it had mast "hasty decisions...and that the potency of the new tools was difficult to predict." (Herman, 2006, p.67) Herman reports that the Patriot Act "has generated strong reactions..." (p.67)There is stated to be a "serious gap between the kinds of concerns raised by informed critics and the kinds of questions the courts will ask in applying what has become submajoritarian Fourth Amendment laws.

Herman additionally reports that the Fourth Amendment's procedural protections were limited "even before September 11...: and specifically states that they were weakened in the service of the war on drugs." (nd) In fact, Herman reports that the Supreme Court has since September 11, handed down decisions in the favor of the government by a 13 to 1 ratio and even allowed "some contested government investigations on the theory that they do not even constitute a search or seizure, approving a roadblock stop of investigatory purpose and endorsing broad discretion to stop, search and arrest the occupants of vehicles." (nd, p.67)

The U.S. Congress and the U.S. Supreme Court hold vital roles in evaluating challenges to these laws. Herman states that there is however "not substitute for vigorous legislative oversight of the surveillance authority created by the Patriot Act and other legislation." (p.68) Herman concludes by stating that should Congress fail to do so, "the Supreme Court should dust off the citation to Marbury v. Madison one more time, review its previous Fourth Amendment doctrine and insist that the courts play their part in deciding when the executive branch should not simply be given a blank check." (2006, p.69) Toni Panetta writes of the U.S.A. PATRIOT Act that it:

"had lofty aspirations, for it was designed to correct five perceived weaknesses, or failures, of the national government to prevent the 9/11 atrocity. It sought 1) to improve sharing of information between law enforcement and foreign intelligence agencies; 2) to gather antiterrorism intelligence by taking advantage of the flexible warrants requirement of the Foreign Intelligence Surveillance Act (FISA); 3) to expand wiretap authority over electronic communications; 4) to seize funding utilized in terrorist activities; and 5) to impose mandatory detention and deportation of non-U.S. citizens who are suspected of having links to terrorist organization (Christopher P. Banks. 2004. "Protecting (or Destroying) Freedom through Law: The U.S.A. PATRIOT Act's Constitutional Implications." American National Security and Civil Liberties in an Era of Terrorism. David B. Cohen and John W. Wells. New York: Palgrave MacMillan in Panetta, nd, p.1)

The work of Wong (2006) entitled: "The Making of the U.S.A. Patriot Act I: The Legislative Process and Dynamics" states that following the September 11, 2001 attacks which cam without warning and which killed 2752 individuals in New York City alone "the President declared war on terrorism and pledged to use all resources at United States' disposal to conquer the enemy. On October 26, 2001, President Bush signed into law the U.S.A. PATRIOT ACT, giving the law enforcement officials expansive powers and security agencies increased resources to fight terrorism, at home and abroad." (p.1)

Wong relates that only a "...cursory review of the legal literature shows that the U.S.A. PATRIOT ACT was "rushed" passed Congress by the Bush administration without following the usual legislative procedure. Throughout the entire legislative process, neither the Congress nor the Administration has systematically investigated and critically debated the merit -- necessity and efficacy, costs and benefits, and the impact and implications of the ACT on the Constitution, on the society, on the people." (2006, p.1)

Even more mysterious is that both the general public and the mass media "...took the government to task for a want of due diligence in scrutinizing the ACT. How could this have happened? To date, no serious attempt has been made to explain how and why the U.S.A. PATRIOT ACT was adopted without any serious contest and effective challenge." (Wong, 2006, p.1) Wong relates findings that after having conducted an examination of the Congressional records, and having tracked the floor debates and monitored newspaper accounts to document the process and detail the dynamics as to how the U.S.A. PATRIOT ACT was passed that factors that came into play included those of: (1) public sentiment; (2) legislative climate; (3) political gamesmanship; and (4) media patriotism. (Wong, 2006, p.1)

Summary and Conclusion

The Fourth Amendment was created for the purpose of protecting the privacy rights of citizens. Following the incident of September 11, 2001, the government overstepped its boundaries through passing the Patriot Act and attempting to pass the… READ MORE

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