After reading a number of posts on here I can agree that
without a doubt there are two distinct sides of this issue, the viewpoint of
the citizen and the viewpoint of law enforcement. I’m sure there are any number of individuals who
have at one point or another have either stated or heard it said that more and
more the laws seem to favor the criminals.
While I agree that this can all too often appear to be the case, it is
necessary to insure that every individual who is charged with any criminal
activity be afforded all the rights they are entitled to under the constitution
and the due process of law. Part of that
‘due process’ is to be ‘safe in the knowledge’ that truth will come out and in the
best case scenario this will happen during the investigation prior to an actual
arrest. The primary problem that I
personally have with the opinions of the Superior Court Judges is that we live
in a highly technical age, technology that is used by both the criminal element
as well as law enforcement. The same
information currently obtained from such things as images from toll booths and
cell phone use from local towers in proving innocence as well as possible
guilt.
The subject of ‘reasonable expectation of privacy’ is at the
heart of any issue that involves the activities of law enforcement regardless
of the level, be it local police or the FBI.
There is no question that we as Americans place a high value on our
privacy, however it is not an actual constitutional right but rather considered
to be a basic human right. The
difference being that as a constitutional right it would be something that is
guaranteed but as a human right it is simply considered to be something that is
taken into consideration. The constitution
refers to or implies a right to privacy in different ways but does not outright
proclaim that there is ‘a right to privacy’.
A simple review reveals that the Constitution does not
specifically mention a right to privacy. However, Supreme Court decisions over
the years have established that the right to privacy is a basic human right,
and as such is protected by virtue of the Ninth Amendment which has essentially
become the ‘catch all’ when referencing the ‘so called right to privacy’ in
determining the validity of evidence.
The legal definition of this amendment simply states, “The enumeration in the Constitution, of
certain rights, shall not be construed to deny or disparage others retained by
the people.” So what does that mean?
Only that the right to privacy is something that is ‘understood’ but not
‘guaranteed’
The right to privacy has come to the public's attention via
several controversial Supreme Court rulings, including several dealing with
contraception (the Griswold and Eisenstadt cases), interracial
marriage (the Loving case), and abortion (the well-known Roe v Wade
case). In addition, it is said that a right to privacy is inherent in many of
the amendments in the Bill of Rights, such as the Third Amendment which
basically requires that in a ‘time of peace, no soldier shall be quartered in
any house without the consent of the homeowner, nor in a time of war except as
prescribed by law’ and by the Fourth Amendment which basically infers to ‘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
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.’
While there are many that also consider the Fifth Amendment as
being supportive of the ‘right to privacy’ simply provides that no person shall
be forced to provide information that can or will result in self-incrimination. It makes no reference to a blanket statement
or inference to the right to privacy as it has been prescribed by the viewpoint
of the majority of Americans.
So what point am I trying to make with all of this? While I would love to say that it is simple,
it is in reality the furthest thing from simple. As a criminal justice student as well as an
individual who has just over two decades of working in some capacity with both
law enforcement and the judiciary system itself, I have a different understanding
of how things work.
It is an analogy that I am not exactly content with yet is
the most applicable based on both experience and academic challenges. Our judicial system is based on an arbitrary
system whether we like it or not.
Essentially because we all know for a fact that every person, indigent
or otherwise is guaranteed by the constitution the right to counsel if they
have been arrested and charged with a crime.
We have the right to know what we are being charged with and to face the
accuser whether it be the victim or the courts as a representative of that
victim.
In the real world there is a process called pretrial motions
where defense attorney’s will submit arguments to have sometimes mountains for
evidence suppressed [meaning the jury will not know about it until afterwards]
because it will prejudice the jury against the defendant. While there are instances where I agree with
this process for the very reasons that are being proposed by the defense attorney,
there are also far too many cases where jury members have stated later that had
they known about a specific piece of evidence their decision would have been
different.
I do not in any manner support the indiscriminate use of any
device or technology that invades the privacy of any individual for purposes
other than to support already substantiated probable cause as determined by the
ruling of a magistrate or a grand jury.
I believe that all actions of this nature should be addressed before a
magistrate in the process of the procurement of a legal warrant prior to the
use of any device or technology that would be intrusive to the privacy of any
individual. I believe that those who are
seeking permissions for any actions that are required to be approved by a
search warrant or should have enough evidence at the time of the request to
prove to any reasonable prudent individual that they are merely seeking
additional information in order to substantiate what they can already prove in
a court of law.
In supporting these issues I wholeheartedly admit that while
I believe that the vast majority of those who comprise our nations law
enforcement do so because they believe in the system and that they sincerely
want to ‘make a difference’ so to speak, I also acknowledge that there are
those who do not and are careless in their discretion.
The need to compile certain types of evidence is based
entirely on the need to be able to convince a jury that the defendant in a case
is either innocent or guilty. The
evidence provided to these people are the tools that they will use once they go
behind those closed doors to discuss and arbitrate their personal viewpoints on
the matter at hand. I for one do not
support the hampering of that decision by restricting what information can or
will be made available to them. It is
simply that I believe that the best decision is a well informed decision.
Read the Article at HuffingtonPost
