Protection from Unreasonable Search and Seizure

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For those not too familiar with the US legal system*, we have a constitutional protection from unreasonable search and seizure. This means the police need a warrant or due cause to search your private property (car, house, appartment, person, etc). The result of this, in court, is that any evidence obtained through such unlawful searches is inadmissible. This can be gotten around sometimes by arguing what's called "eventual discovery", that being that, had the police not illegally searched, they would have done so legally sooner or later (the judge decides how reasonable that arguement is, I believe). I don't know what if any consequences fall on the officers who do the search.

Now, my mother-in-law being Brittish, I have heard the UK does it slightly differently**. If the police unlawfully search your property, the evidence is admissible in court (though possibly subject to suspicion), but the officers who did the search are guilty of committing crimes (Breaking and Entering, theft, maybe assault, etc). This can pretty much end their carreers and send them to prison. It does mean, however, that the evidence is still useful, so if the police find a bloody knife, the killer still goes to jail.

I wondered what everyone thought of the values of the two systems. I'm not sure if this is better in AoLS or AoDA, but I think a legal issue goes here in AoLS. I'm wondering what people think of a practical level, though.

*Not being an expert in American law, myself, any of our lawyers are free to correct me or elaborate.
**Definitely not being an expert on UK law, anyone who knows their system better definitely should correct me or elaborate.

 

On a practical level, the concept is BS -- let me use an example that just happened here in Canada.

So there's this drug dealing piece of crap (DDPOC) driving along and driving erratically. A decent police officer pulls him over, and asks to see his licence and registration. The guy is acting suspiciously, so the cop searches his vehicle. He found several kilos of cocaine -- not just an ounce or two, but kilos worth. When the case went to trial, some douchebag lawyer argued that the search was unconstitutional and the DDPOC walks free.

Maybe the cop didn't have what the slimy little defense lawyer considers to be a good enough reason to search the car, but IMHO the proof is in the pudding -- he found contraband.

I know the lawyers here will tell me that I'm wrong and how it's important for my freedom that drug dealers walk free to poison my children*, and I also know that the principle is sound. But in extenuating circumstances I think that common sense should prevail and that a man carrying huge amounts of cocaine should be punished regardless of the technicalities.

*apologies for the vitriol, but cases like this really get me riled up.

 

In America, the police can search your car during a traffic stop if you're arrested. As soon as you're arrested, they can legally search your car. I'm not sure the same rules apply for your house though.

 

I like the US system better. I would rather NOT be illegally searched than have the officer punished after the fact. I also find it confusing that it's legal to use illegally obtained information in court in Britain. WTF?

In the case that LKD mentioned, it sounds like the cop screwed up. The cop could have asked to search his car - and if the guy said OK it would not be an illegal search. If they guy said no, then when in doubt you get a warrant. It's legal to detain the guy while you radio the police station, the police chief has the county magistrate's office on speed dial, and in half an hour you get to legally search the DDPOC's car.

If DDPOC tries to drive off you chase him, and now you DO have probably cause to search the DDPOC's car.

Yeah, but this was a traffic stop - there wasn't an arrest being made.

 

Myself, I would prefer that the police were not able to search my vehicle in the 1st place. If I'm drunk, I'm drunk. Arrest me for DUI. Done deal. Why the need to search my vehicle? If I'm arrested for shoplifting a loaf of bread, do they get to search my home PC for Terrorist communication or my attic for hidden cocaine repositories. No. So why should they be able to search my car when they pull me over and arrest me for DUI? I have never agreed with the search & seizure laws. They are too open here in the states.

If a cop is willing to break the law to prove another's guilt, I do believe it should hold up in court though. The cop's actions don't erase the law-breaking of another. If the cop is willing to take the risk, for the greater good AND pay the consequences, then I'm all for that. It's his/her career.

 

Suggestion: Because they are supposed to enforce the law in its entirety and not to enforce DUI laws only?

In Germany searches are generally only allowed with a search warrant signed by a judge. But they are also allowed if there is the police has probably cause to assume that a crime has been committed, and time is of the essence. They will then search your car or house without a warrant, and if necessary, without a key, and they will do so legally as long as they can lay out that they had probably cause and no time to get a proper warrant (which usually is the case).

Effective law enforcement is seen as more important than privacy concerns in this regard. It makes no sense to have them letting go a bloodstained driver they stopped in a routine DUI check only because they have no search warrant, allowing him to destroy all the evidence and to dispose of the body he has in his trunk. Another example would be a person previously convicted of drug trafficking, met alone in his car close to the Dutch border.

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There is no point in making procedure an end in itself. Process was established to protect rights, but those rights don't exist in a vacuum.

 

If there is a bloodstain, then they would have cause to search the car. On the other hand if the driver isn't bloodstained, but just drunk, I'm not so sure I like that idea of them going into his trunk. It's not necessary for them to do so. Or the jobless shoplifter of a loaf of bread, because his family was hungry, should they search his home too after they arrest him? I feel that the pretense and cause of another law broken has to be there for them to search. Not saying that's the law, just how I feel.

 

I understand no one likes the police to search without due cause, and neither do I. The question is, should the police be punished, or should the criminal (assuming that conclusive evidence is found) go free?

 

As I said, I think that as in Germany, the police, as far as they have probable cause and if time is of the essence for a search, ought to be allowed to search, and when evidence is then found it ought to be allowed to be used.

Without probable cause and imminence a search without a warrant is always illegal, and the evidence cannot be used, more the evidence must not be used. That is not to be nice to the bad guys, but to protect everybody else's right to privacy and gives meaning to the requirement that searches of the private sphere are only allowed with a search warrant signed by a judge.

I see our approach as more pragmatic and still respectful of individual rights - and clearer - than the case law ridden approach in the US, further exacerbated by often anachronistic individual state codes and imponderables like, say, what the deciding Jury perhaps had for breakfast

 

Juries only get to decide if the accused is guilty or not - it's the judge that decides whether or not questionably gathered evidence is admissible or not. (I know you didn't say it exactly that way, but you're making it sound like the jury makes that decision.)

 

I mentioned juries because they decide the cases that become precedents in the US. What I had in mind was the Miranda case and the manifestations of that precedent in US law enforcement practice and the law of the land (i.e. 'case law ridden approach').

It is a little bit silly, but German arrestees, criminals in particular, habitually complain to the police and judges about not having had their rights read to them on arrest. They also like to call the Judge 'Your Honour' instead of 'Herr (or Frau) Richter'. That is the manifest effect of too much US television crime series on their international audience.

Anyway, from what I understand, under the rules derived from the Miranda precedent, US cops are required tell the arrestee his rights upon arrest, no matter whether he is in a drug or alcohol induced stupor or has just been taserd or otherwise subdued or whether HE REALLY REALLY HEARS BAD (GOT ME?!). In Germany you are read your rights at the beginning of questioning, when arrestees have sobered up, which IMO makes much more sense. They have at any time the right to demand contact to an attorney. Again, I see this as more pragmatic.

 

So you're saying that jailing the police who searched without cause isn't enough to protect people's right to privacy? The way I see it, they're both means to protect people's rights, but one ends up favoring the criminal.

That's hilarious and sad at the same time. I hope "Herr Richter" shows no mercy to them!

 

Not exactly. Police will face criminal charges only if they repeatedly and intentionally for no reason (or grossly negligent) overstep the line. That rarely happens. Cops are always caught between a rock and a hard place. On the one hand they face abuse of office charges if they overstep the line, and on the other hand they face charges if they are timid and don't enforce the law. That's why they are given a little leeway.

The intentional and illegal search of a car will in Germany have disciplinary consequences for the cop, because it is not a crime but an abuse or misuse of administrative powers handed to the police officer. Bad enough for the policeman, but worse things have happened.

The prohibition to use illegally acquired evidence is simply a disincentive for the police, meant to deter the illegal acquisition of evidence against a citizen, no matter how, by rendering the 'fruits of the offence', the gathered evidence, useless. It has to be considered non existent. It forces cops to stick to the law and procedure.

In Germany the spectre of limiting police powers comes from the experience of the Nazi times and communist East Germany, where the police was pretty much free to ignore all rules of evidence and arrest, and would screw people real bad if they wanted.

Finally, I think it is a false dual choice to say: 'Either we allow unlimited collection of evidence, or the criminals will go free!' It usually isn't like that.

 

At the conclusion of the Miranda rights, the officer asks, "Do you understand the rights I have read to you?" This is in case the person cannot hear, or cannot even speak English. A German arrested in the US could say in response: "Ich spreche Deutsch" or whatever the appropriate German translation would be.

 

Aldeth,
you know, they never show that part on tv ... Thanks for the explanation It does make way more sense that way, and I freely admit that I am somewhat (greatly) prejudiced here in favour of German law. SP does have an educational effect at times.

... on the other hand, there have been those nasty cases where German nationals have demanded consular support that they were then denied and all that, so to conclude from that - I doubt a German response would greatly impress police officers in the mold of Sheriff Arpaio (just to pick an apt stereotype).

 

Certainly not make law, but they are polled in those criminal cases that become precedents - that then inform the interpretation of the law

Thanks, it's all right I even have two follow up questions out of curiosity ...

- If a jury finds facts incorrectly, can the judge set them straight? And can their incorrect finding be fought in an appeal, that is, can, and if, under what circumstances, new evidence be introduced?
- If there is overwhelming evidence, and the jury acquits anyway, for whatever reason, and after having been exhaustively and correctly been briefed, can their finding be nullified?

 

I'll let dmc provide a full answer to the questions, but new evidence can be shown in an appeal (although I believe any new evidence has to be reviewed prior to trial and be judged admissible first), and if a jury acquits, the guy walks. No double jeopardy, no retrial.

See Simpson, O.J.