Nowadays, a search warrant that prescribes to search the specified place for the presence of objects, which in the case of their finding may be used as evidence in the court, is a well-known and a common thing. But it was not so in the past. The Founding Fathers introduced it to the lives of American people in order to protect them from the absolute power of the government. However, the times and the world have changed. Now, people live in the digital world what has significantly influenced the search warrant requirements what the Fathers could not predict. Thus, it is important to explore to what extent the usage of the search warrant and its requirements have changed from the past until these days and analyze whether people are true to the intentions of the Founding Fathers.
The search warrant requirements are stated in the Fourth Amendment to the U.S. Constitution. The Amendment prohibits unreasonable searches and requires any search warrant to be issued by the court only if there is sufficient ground. The Founding Fathers adopted the Amendment as a response to the abuse of the so-called writ of assistance - a kind of a search warrant, which was issued by the Government of the British Empire. These writs allowed the government representative searching any premises and any person in pursuance of objectives described in the warrant only in general terms (e.g., to prevent the smuggling or the commission of crimes) (The Founders Constitution. Volume 5. Amendment IV, 2000). At the same time, a searcher was not responsible for the damage caused during the search and could consign the search to others. It empowered the soldier or the sheriff with essentially unlimited power. In the general warrant, the reason of the issue and in respect of whom were not specified. The reasons for the search were also absent. Such writs had indefinite duration and were canceled only after six months after the monarchs death who issued the writ. Such unreasonable searches have become one of the causes of the American Revolution. After gaining the independence from the British Crown, the Founding Fathers realized that there is no place for general warrants in a free America. The practice of general warrants, when the officer or the envoy may be empowered to conduct searches of suspicious sites without having the evidence of the facts of illegal acts is glaring and despotic and should not be put into a life (Kilman & Costello, 2006). Thus, in 1789, James Madison proposed the Fourth Amendment as a response to the claims of the opponents of the new Constitution. In 1792, the U.S. Secretary of State, Thomas Jefferson, declared that the amendment was adopted and has become the part of the U.S. Constitution (The Library of Congress, n.d.).
Place New Order
Due to the fact that originally the Bill of Rights did not apply to the states and the federal investigations were extremely rare, in the first century of the existence of the United States, the amendment was rarely used. Only in 1961, the U.S. Supreme Court has confirmed the fact that the Fourth Amendment is mandatory for the state governments. Thus, at the level of individual states, the appropriate statutory legislation became being adopted (Yardley, 2014).
According to the amendment, the searches should be limited to the purposes set out in a court warrant. Such warrant may be issued only on the basis of the written evidence usually given by a police officer under oath. Most of the litigation concerning the Fourth Amendment relate to the three questions: what is the search? What are the reasonable grounds? And what are the implications of the Fourth Amendment violation? Initially, the courts considered that the amendment only prohibits physical intrusion of police into the territory of private property. However, since the second half of the 20th century, the courts became recognizing that the Amendment protects a persons right to privacy overall, not only his physical integrity. At the same time, the exceptions to the rule about the necessity of the warrant were developed: voluntary consent for a search, vehicle search, the search public place, the search at the border, as well as the presence of exceptional circumstances.
The evidence obtained as a result of a violation of the Fourth Amendment cannot be evidence in a court. Moreover, the evidence obtained subsequently on the basis of illegally obtained evidence may also be deemed to have no probative value, unless the police provide evidence that they could detect even without illegally obtained information.
The Founding Fathers by adopting the Fourth Amendment created the right of people to guarantee of the inviolability of a person, houses, papers, and property against unreasonable searches.
The analysis of the Fourth Amendment leads to the conclusion that the authors of the Bill of Rights admitted the possibility of justified and legitimate searches. The Founding Fathers were adamant that they established the rule of laws and not of humans. They recognized that the structure of the State, inscribed by them in the constitution and the system of mutual control of the authorities was conceived with the primary aim to make the country be governed as a constitutional state. According to the Founding Father, John Adams, the executive branch shall not exercise the functions of the legislative and judicial powers in any case to make the people be governed by laws, not humans (The Heritage Foundation, 1776). The executive power that arrogates the right to ignore the legitimate and lawful directives of the Congress or to act beyond the control of the judiciary becomes the main danger, which the Founders wanted to eliminate from the Constitution. This danger is all-powerful executive branch that is too reminiscent of the King, from which they got rid.
The Founding Fathers of the United States were aware of the importance of private property rights for individuals and society as a whole. The property allows people to pursue happiness, to find common ground with those who are not like them, and to maintain confidence in the fact that nobody can take away the fruits of their hard work.
The purpose of the Fourth Amendment and the search warrant limit the ability of the authority to violate the rights of the population. The Founding Fathers formulated those limits in the form of certain phrases, such as the accused will take the advantage of the right to and others. They also stated the main provisions in the negative form such as Congress will not pass a law. These restrictions allowed a person to be freer, because his/her life will be free from governmental restraints.
The founders wrote in the Constitution that all people are created equal, and that the lower ones have the same rights to life, liberty, and property, as well as higher ones. Due to improper use of government, a modern man accepts laws that make people equal in all areas of their lives. Such a clear lack of human nature understanding has brought a lot of trouble since a man began to try to form a government.
Thus, by creating search warrant, the Founding Fathers were concerned about the amount of power that the federal government should have. They tried to limit this power, making the constitution in such a way that the government had specific, defined and strictly limited powers.
For more than 200 years, since the Founding Fathers put the search warrant requirements on the paper, the form and procedure of the search warrant issuance, in fact, have not changed. However, there are many changes outside the paper.
The Fourth Amendment is the main mean of protection against a totalitarian government, as well as the search warrant, and this amendment is now being trampled daily by legislative acts and actions. Unfortunately, todays political leaders ignore the lessons taught to people by the Founding Fathers.
The Fourth Amendment establishes a clear requirement to the search warrants that should contain a reference to a particular person to be searched, and a detailed description of the search place, or the items to be seized. However, this constitutional provision is somewhat distorted through the prism of the law, the judicial decisions and police practices. Thus, according to the federal rules of criminal proceedings, if the name of the accused is unknown, a search warrant can contain any name or description by which he can be identified with the reasonable certainty. Such a blanket warrant allows the law enforcement officials abusing their right to arrest. The comparison of blanket warrants with the Fourth Amendment requirements gives the reason to conclude that its existence is identical to the absence of any order at all.
In the modern American society, the idea of general warrants and general searches, that the authors of the Bill of Rights rejected when establishing the Fourth Amendment, often emerges in the prescriptions of statutes and in the daily practice of police officers. The idea of the general search is the most tangible in the practice of eavesdropping and electronic surveillance for the purpose of intercepting and recording conversations of citizens.
Not long ago, the United States discovered the shocking news that for several years, in spite of the permanent law, the executive branch secretly spied on lots of Americans and listened to a large number of phone calls, as well as e-mails and other forms of online communication within the United States (Heath, 2015). The New York Times reported that the president decided to start this massive listening program without a search warrant or other legal document, authorizing the collection of personal information (Risen & Lichtblau, 2005).
- Our custom writing services includes:
- Custom essay writing for the best grades;
- CV, resume and cover letters which would
make you successful
- Thesis and dissertations writing by academic
The Founding Fathers could not imagine that their formulated guarantees of legality and validity of searches will become the subject of dispute between legal scholars, practical police officials and political scientists about the constitutionality of the eavesdropping and electronic surveillance. Eavesdropping has become a formidable instrument of government intrusion in the privacy, the constitutional right to which for many years has been so thoroughly justified by lawyers, judges, and university professors. Lawyers became arguing that eavesdropping should be equated to the conducting of the search in a constitutional sense, and the conditions prescribed in the Fourth Amendment should be extended to it, since it is essentially not much different from a search for the purpose of removal of evidence of a crime. The opponents of eavesdropping argue that it is unconstitutional in nature, as it is, in fact, a general search, because while eavesdropping, it is virtually impossible to predict which part of the conversation or what conversation can become a prosecution evidence. Therefore, even if accepting eavesdropping as the search within the meaning of the Fourth Amendment, then it is impossible to include a detailed description of the object to be seized in such a search warrant, as eavesdropping is conducted blindly, until the interested talk will be recorded. Eavesdropping catches everything that happens in the world of sounds, without being able to distinguish the things. That is why opponents of eavesdropping consider it as a formidable instrument of invasion in constitutionally protected privacy.
However, the supporters of eavesdropping point its effectiveness in the fight against crime in general, and especially with such its kind as organized crime. In assessing the legal regulation of eavesdropping, it must be borne in mind not the strictness of the regulation (the experience shows that it is not difficult for the law enforcement agency to convince the judge in the presence of sufficient reason for the installation of listening devices), but the fact of legalization of eavesdropping and its recognition as a completely constitutional method of gathering evidence. The general search, which the Founding Fathers were trying to exclude from the law enforcement in order to protect people from the tyranny of the authorities, has institutionalized in the modern U.S. constitutional practice through the achievements of electronics. Eavesdropping destroys the foundations of privacy and the fear of the omnipresent electronic ears of the state nullifies the possibility of citizens to freely use the political rights granted them by the First Amendment of the Constitution.
Nowadays, the Fourth Amendment is in the process of disintegration due to the military necessity. Military necessity is a too pretentious justification for the current federal and local officials, when they break into the houses in the middle of the night usually without a search warrant and without warning, thus terrorizing the unfortunate citizens. Thus, in 1992, the local tactical group on the fight against drugs has crushed a house and the company where the search in a planned manner was conducted (Vidal, 2001). The police officers in plain clothes broke into the grocer and the restaurant owner from Jamaica. The shelves were swept onto the floor and the goods were spoiled. They also had not reported that they were from police. However, they found nothing except a registered gun, the owner was arrested and accused of countering the arrest and was jailed. A judge later dismissed the case (Vidal, 2001). Additionally, in 1991, in Garland, Texas, the police officers in black and black ski masks broke into the trailer brandishing guns, broke the bedroom door, where the man (Kenneth Baulch) was sleeping with a small son (Vidal, 2001). The police said that Baulch represented a mortal threat to the life of law enforcement custody, because he was holding in his left hand an ashtray. It was his explanation why he shot in the Baulchs back and killed him. The internal police investigation has not found anything illegal in the actions of the police officer (Vidal, 2001). Furthermore, in 1992, 30 employees of various departments fighting against the drugs broke into the house of 62-year-old Donald Scott (Felkins, 2003). Scott (he slept on the top floor) grabbed the gun and ran down to protect his wife, frightened by the invasion of the masked men. The agents shot him right in front of her. The searches of marijuana bushes on 200 acres of Scotts land lead to nothing. In the course of the investigation, it was found that a search warrant was issued based on unverified message of one informant, and that the agents lied that they had evidence to retrieve it (Felkins, 2003).
Moreover, after the terrorist act in 2001, the United States passed laws (the Patriot Act, etc.) that limit the rights of citizens with the purpose of combating terrorism, and created federal agencies (Homeland Security Department), which, along with the FBI, are entitled to listen to phone calls, restrict the freedom of word and others (Department of Justice, n.d.). They have the right to search citizens homes in their absence, to check the personal data of employees, etc. (Department of Justice, n.d.). The Patriot Act violates the Constitution, permitting search and prosecution of the U.S. citizens and their property without a warrant issued by an independent court on the alleged grounds. The special courts of foreign intelligence, the standards of which do not meet the constitutional requirements of the Fourth Amendment, may issue the warrants to view personal records including medical and library cards. It may be done in a secret, and the person who transmits the recording is silenced on the inspection. The Attorney-General was authorized to write the national security letters requiring holders of any of mans personal records to give them to the government to check without supervision the power that the prosecutor has already abused. In addition, a person will never know what was done with his records.
Moreover, contrary to the regulatory structures, the actual procedures of the warrant issue scheme are different. It is not the decision of the judiciary representative that has a controlling meaning for the police and the prosecution, but the decision of the police and the prosecutor determines the sanction of the magistrate. The warrant issued by the neutral and impartial magistrate often serves only a documentary and automatic confirmation of the prosecutors decision to bring a suspect to justice. At the federal level, the approval of the applications for warrants by the prosecutor is an ingrained practice. In some states, law requires the prior approval of warrant by the prosecutor.
Furthermore, the research conducted by the American lawyer, professor Miller, in the states of Michigan, Kansas and Wisconsin revealed that there is actually no judicial check on the availability of sufficient grounds to issue search warrants (Miller & Tiffany, 1964). The jurisprudence of the United States shows that a sufficient basis for the issuance of a search warrant usually consists of various types of raw data of operational police work, in particular, the information received from the police informant. The name of the informant in the application for the issuance of a warrant is usually not disclosed. The police officers approval of the reliability of the informant is usually enough.
The uncertainty of the grounds for issuing a search warrant, reducible mainly to the unverified information of an operational nature, represents wide opportunities for the abuse of the police authority in the implementation of its law enforcement measures. Although, a thorough search of the person arrested upon probable cause is necessary for the interests of the safety of the police, but such searches are often used more than the required boundaries, abusing them and humiliating people. Additionally, a number of decisions of the Supreme Court also confirms the right of police to search the premises in which the legitimate arrest of the entity is made without a warrant. This rule is contrary to the Fourth Amendment about the conducting of the search only on a warrant.
Thus, although the Fourth Amendment was developed to stand between people and the tyranny of the government, nowadays, in all practical cases, this shield is now destroyed, leaving the freedom and privacy of people for the whims of the will of every police officer on the street, the patrol on the highway and the jailer in the prison. The Founding Fathers would be shocked.
The Founding Fathers stated search warrant requirements in the Fourth Amendment to the U.S. Constitution. They wanted to move away from the general search and general warrant that allowed searching any person and any things. They prescribed that the warrant should be issued only by the court and only in the case of sufficient ground. Their intentions were to restrict the power of the government and make all people equal with the protected rights. However, with the passage of time, the law almost has not changed, but, in fact, the intentions of the Founding Fathers according to the search warrant are not complied. In todays digital world, the American government illegally eavesdrop peoples conversations and read online messages without a search warrant. The police officers brake down into houses without the search warrants or with the search warrants that have not sufficient grounds. The government authorizes itself with more power than it should have.