[PROS] It protects us in emergency cases
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.
A state exists to protect the safety and freedom of the people. The 12th article of the Constitution on “freedom of the body” is the longest among the specific articles. It goes into lengthy detail even if details do not necessarily have to be stipulated in the Constitution. But at the same time, it underscores what physical danger individuals were under during military authoritarian regimes. As a result, most people still bear suspicion and fear toward law enforcement.
The brutal killing of a young woman in April by the Korean-Chinese immigrant worker Wu Yuanchun at his house in Suwon, Gyeonggi, heightened the public outcry against the police for failing to respond in a timely manner despite the victim’s call for help. The police cited legal constraints for entering and searching the premises without authorized consent as an excuse for arriving too late to the scene of the crime.
The case led to legal revision to allow police to locate victims on their cell phones without prior consent in emergency conditions. But extending the scope of what authorities are allowed to do without warrants remains controversial.
When a fire is reported, firefighters can take immediate measures and try to extinguish the fire. But when a life is under serious threat, officers cannot take protective actions unless they enter the premises, see and access the danger.
But entering a premise without a warrant can lead to legal and criminal problems. The police need an order to search and seize which is petitioned by the prosecutor and signed by a judge. But in exigent circumstances, police should have the authority to carry out emergency searches. Under the current law, officers cannot enter a site and search despite evident signs of danger if the occupant refuses. The administrative law and duties of the police should be revised to define emergency exceptions in warrantless searches and seizures.
Emergency searches would entitle the police to break into the premises where criminal activity is likely to be occurring and question the people there. The authority should be administered with scrutiny and limited to extremely urgent circumstances. It should not interfere with the everyday lives of the people in any way. It is the state’s duty to mold and make laws according to social changes, dangers and needs.
We cannot out-of-hand oppose or deny the necessity of emergency state measures just because they were exploited by authoritarian governments in the past. Police emergency exceptions on searches should be institutionalized in order to reinforce the police’s role as defender of public lives and property.
Warrantless actions can gain viability when they leave no room for doubt about violating civilian rights. The actions must be administered according to thoroughly transparent procedures. The police officer must show his identification card and clearly explain the purpose of the emergency search to seek understanding from the person in control of the property.
The result of warrantless searches must be immediately reported to the first-in-charge officer in the jurisdiction. It should be done as quick and accurately as drinking and driving cases are reported. The emergency searches should also be supplemented with the necessary legal steps after they are made. The exceptions also need to be limited to circumstances where a person is physically under threat.
Last, law enforcement actions are exercised in the name of the state and the government must take responsibility for any damages. The damages for victims should be addressed as a part of enhancing the social safety net as defined by the relief requirements for criminal victims in the Constitution.
Translation by the Korea JoongAng Daily staff.
*The author is a law professor at Seoul National University and chairman of the Korea Law Professors Association.
By Sung Nak-in