Criminal Procedure Probable Cause
Probable cause is a standard of reasonable belief, based on facts. Probable cause is necessary to sue someone in a civil court, or to arrest and prosecute someone in a criminal court. Before a person can be sued, arrested, or prosecuted the plaintiff, or the police and prosecutor must have enough that would lead a reasonable person to believe the claim or charge is true. Probable cause sets a limit on police power. A police officer cannot arrest a person just because they want to.
The officer must have a reasonable amount of suspicion or evidence to stop or detain them, and probable cause to charge or arrest them. An officer must always meet the criteria of probable cause before taking action with regard to criminal activity. If the officer does not have probable cause the case will be dismissed and the officer will be open to a lawsuit. The context of the Criminal Procedure is important to the criminal justice system as it allows rules and regulations to adhere to the court system in criminal proceeding (Zalman, 2008, p. 0). A criminal procedure starts with the first contact of a police officer through investigating and interrogation. Next is the pretrial process, charges by the prosecutor, adjudication claiming guilty or innocent or plea bargaining, the sentencing process, and last the appellate review by a higher court (Zalman, 2008, p. 10). Criminal procedure and probable cause correlate within each other in the criminal justice system. Cell phone tracking and or hacking has been a controversial issue because of the rights that stand behind it.
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As a team we have selected to cover the current topic on cell phone tracking and how the search and arrest warrants correlate with probable cause, exceptions to warrant requirements, defining search and seizure arrest and reasonableness in conjunction to the criminal justice system. “Instead of seeking warrants based on probable cause, some federal prosecutors are applying for orders based on a standard lower than probable cause derived from two statutes: the Stored Communications Act and the Pen Register Statute, according to judges and industry lawyers” (Nakashima, E. November 23, 2007).
Although these two acts aid as loop holes for standard lower probable cause, in order to obtain a search and or arrest warrant a judge must have probable cause to believe that a person is responsible for the crime in order to issue the warrant. “Probable cause is when the facts and circumstances, both reasonable and trustworthy, are sufficient to warrant the belief that a crime has been or is being committed” (“Criminal Law Lawyer Source”, 2013).
The Fourth Amendment of the Constitution protects all United States citizens “the right of the people to 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 things to be seized” (“U. S Constitution”, 2010).
The article mentioned that officials are constantly asking cell phone carriers to furnish real time tracking data available so that tracking criminals, fugitives and drug traffickers are at so that they can be monitored. When the fourth amendment was set in place it was for the security of people and having privacy from the authorities to have boundaries. Unauthorized cell phone tracking can seem like an invasion of privacy and or illegal but in fact it is many courts see it as tailing the cars, or tracking K-9.
Even though cell phone tracking does not violate any of the civil rights, maybe it is something that is circumstantial and even of it is not considered to be in violation of the Fourth Amendment it is something that can be debatable. Like many say that a cell phone belongs to an individual and is part of a person, the Fourth Amendment clearly states “the right of the people to be secure in their persons, houses, papers, and effects” (“U. S Constitution”, 2010) if someone purchases a cell phone that belongs to the person whom purchased it.
The exceptions to warrants may very like with any situation and case consent is something that is always an exception to rather obtaining a warrant. Consent is when “Voluntarily acquiescing or complying with a request, by someone of sufficient mental capacity; a decision made in the absence of coercion or duress. Whether or not a party has given voluntary consent is determines by the totality of the circumstances” (“NPC “, 2007). When a suspect allows the officers to search and whatever is found can be used in court. “Search incident to lawful arrest does not require issuance of a warrant” (“NPC “, 2007).
When a person is stopped and arrested the officers have the right to search the area around the suspects as long as it is at arm’s length and what would be admissible in court. There is also the plain view exception and as the exception states, when the officer can see evidence, the evidence that is visible to an officer can be used in court. Automobile exception is one of the exceptions because a vehicle is highly mobile and if it contains evidence of a crime. All of these exceptions for an arrest and search warrants do not require one, but other than this the warrant should be issued if they do not fall under any of these exceptions.
The police tracking the cell phone without a warrant are something that judges do not see as an invasion of a person and in fact technology is known to now be owned by a person even if the financial responsibility belongs to a person. Search and seizure is necessary when the law is in pursuit of criminals. Searches and seizures are used in court rooms against criminals to produce evidence for the prosecution of criminals. The police have the power to search and seize, but the people are protected against unreasonable police intrusion.
The majority of our rules and laws in the United States came from England, as the United States became its own country the laws that were used from England changed; they changed so that the people would not be taken advantage of by the police. Under England’s rules the police had the right to conduct searches on people’s houses and on the people itself without any justifications. Customs officials would randomly enter the homes of colonists to search for violations of customs and trade laws. Searches were also carried out against people that were outspoken political activist (“Search And Seizure”, 2013, p. 1).
These searches that were performed by the government were to show that the government had the power and the people could not do anything about it. In the 1790’s the newly formed United States ratified the U. S. Constitution’s Fourth Amendment by giving the right to people to be secure in their person, papers, houses and against unreasonable searches and seizures, it also states that the people should not be violated and no warrant shall be issued unless there is probable cause, this is supported by Oath or affirmation, and particularly describing the place to be searched and the person or things to be seized (“Search And Seizure”, 2013, p. ).
The police has the power to investigate, arrest people, perform searches and seizures on people and their belongings but this power must be used within the boundaries of the law and if the police exceeds these boundaries of the law it puts at risk of the evidence they collected from being dismissed in court. The public has the protection of the Fourth Amendment unless they cannot demonstrate that they have a reasonable expectation of privacy in the area that was searched or the items hat were seize; in other words a person knowingly exposes to the public, even in his own home or office, is not a subject of the Fourth Amendment protection (“Search And Seizure”, 2013, p. 1). People do not posses any reasonable expectation of privacy in vehicle location, bank records, garbage left outside for collection, land visible from a public place and other places and things visible in plain view. Cell phone tracking powers and request is a big issue right now in the court system when it comes to tracking data from cell phones.
Federal officials are always asking courts to mandate cell phone companies to furnish real time tracking data so that drug traffickers, fugitives, and other criminals will be located easier and faster. Some judges have granted the request without the government having to demonstrate probable cause because there’s probable cause that a crime has taken place or the investigation will give away evidence of the crime that was committed at the time.
Justice Department spokesman Dean Boyd said that attorneys should follow the department’s policy and that it is highly recommended that the prosecutor that’s out on the field should always have a warrant based on probable cause to get location data that is in a private area not accessible to the public (Nakashima, 2007). We believe cell phone tracking should only be used when there is probable cause and a warrant has been issued for that phone; if it comes to a daily routine that the government or peace officers can just get into people’s phones then the government and the peace officers are violating the peoples Fourth Amendment.
Cell phone tracking will always be a hot topic as far as probable cause goes because of our rights. The 4th, 5th, 6th, and 14th amendments apply to all citizens protecting the rights of a person of his or her belongings to the protection of self incrimination and double jeopardy, giving an individual the right to a speedy and public trial, and citizens the right of privileges from the state, local, and federal levels. Not every situation will guarantee agreement from all sides, but in the confines of the laws and regulations the United States have made efforts to give its citizens rights and protections through each system set in place.
Criminal Law, Lawyer Source. (2013). Retrieved from http://www.criminal-law-lawyer- source.com/terms/probable-cause.html Nakashima, E. (November 23, 2007). Cellphone Tracking Powers on Request. The Washington Post. doi: http://www.washingtonpost.com NPC . (2007). Retrieved from http://nationalparalegal.edu/conlawcrimproc_public/protectionfromsearches&seizures/ext owarrantreq.asp Search and Seizure. (2013). Retrieved from http://legal-dictionary.thefreedictionary.com/Search+and+Seizure U.S Constitution. (2010). Retrieved from http://www.usconstitution.net/xconst_Am4.html Zalman, M. (2008). Criminal procedure: Constitution and society (5th ed.). Upper Saddle River, NJ: Pearson Prentice Hall.