[CONS] Searches can infringe upon rights

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[CONS] Searches can infringe upon rights


Should we allow warrantless search and seizure?

*One idea being floated by politicians and the government as a part of efforts to rein in the surge in violent crime is allowing police to conduct warrantless search and seizure in emergency situations. Police officers would be able to enter the premises without a warrant to search or seize objects as well as stop suspects on the street in emergency situations where public safety is at risk.

Emergency searches can reinforce police authority to carry out law enforcement in the field. Even a call for help as in the case of Wu Yuanchuan, who brutally killed his victim in his home, police cannot respond immediately and enter the house if the owner does not consent to the search without a court-issued warrant. But a current revision to allow such authority, however, raises three serious questions.

First of all, the scope of extending permissible warrant exceptions in “exigent circumstances to relieve and remove dangers and protect lives, ensure physical safety and property” is too broad. Laws to protect personal property should be exempted in order to minimize the violation and interference of privacy.

The application of warrant exceptions is also wide. The searches could be applied to anything from land, buildings, people, objects, ships or motor vehicles.

The scope of the investigation, too, is ambiguously unspecific and therefore could raise controversy. Searches can be interpreted to be extended to unauthorized questioning and interrogation.

The post-search containment mechanism is also lacking. The emergency searches would be required to be reported to the police chief of the jurisdiction, but that action alone cannot guarantee justification of the searches. A legal oversight system is necessary to prevent the abuse and recklessness of the warrantless authority.

Police abuse and exploitation of emergency exceptions have often been cited in cases of stopping and questioning, where officers briefly detain a pedestrian or car driver on reasonable suspicion to demand to check their identification. Without any particularity with their ID, they are sent away.

In theory, these “stops” as with warrantless searches should be applied in emergency circumstances for proactive policing to prevent life-threatening, physical or material harm.

But even a National Human Rights Commission warning has not stopped officers from the habitual practice of stopping and frisking citizens in a manner as though they are dealing with potential criminals. The search exceptions without a valid warrant could also be employed with the same lack of scrutiny.

We could study the U.S. application of emergency entries and searches. The U.S. restricts warrantless searches under the Fourth Amendment of the Constitution, proving that “The right of the people to be secure .?.?. 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.”

When the police arrive at the scene on a 911 call, they can enter the house or building and search without the occupant’s consent. In unreported cases, the police can act upon the sounds of screams or weapons. The searches are limited to the injured. They are authorized to conduct visual inspection for more victims upon noting signs of blood. The police also can make warrantless searches or seizures when they are lawfully in a position to see and access contraband or dangerous evidence in “plain view.”

But opening a drawer or moving an object requires a warrant. The U.S. authorizes emergency warrants by phone or other wireless devices to allow quick execution of law enforcement. Officers who arrive on the reported crime scene can ask the judiciary for search warrants after explaining the circumstances. When warrants are approved, they print out the copy and execute the searches.

The warrant exceptions currently being studied should be reviewed. Police can use the article in the police duty execution law that authorizes emergency entry to prevent and relieve a person in danger. If the property occupant does not agree to the search, police should undertake the necessary procedures to get the warrant.

Instead, the U.S. system of reviewing and authorizing verbal warrants could prove more helpful. Proactive and protective policing is important, but so are civilian rights to freedom and privacy and proportional law enforcement.

Translation by the Korea JoongAng Daily staff.

*The author is an American lawyer.

By An Junseong
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