The Right To Privacy In Democratic Society
Published 28 Jul 2016
One of the landmarks of every free and democratic society is the right to privacy. Though the right to privacy is not expressly spelled out in the US Constitution, some provisions in the US Constitution recognize an individual’s zones of privacy. One of these provisions is the Fourth Amendment. The Fourth Amendment protects the right of the individuals against unreasonable searches and seizure by requiring a search or arrest warrant before a search or arrest is effected. It also requires the magistrate to examine the evidence presented by the police officer before a search or arrest warrant is issued. If the magistrate is not convinced then he can ask additional questions so that the magistrate may be fully satisfied that there is indeed probable cause for the issuance of search or arrest warrant.
The Supreme Court’s decision is in line with the intent and spirit of the Fourth Amendment that requires probable cause before a search or arrest warrant is issued. The probable cause shall be determined by the magistrate himself upon examination of all evidence and affidavits presented before him. This duty of ensuring that probable cause exists has been delegated by the US Constitution to the competent magistrate. The magistrate cannot further delegate this responsibility by relying on the unfounded conclusions of the police officer. Thus, a competent judge or magistrate is duty bound to examine the affidavits presented by the police in support of the request for search or arrest warrant. If he is not satisfied, the magistrate may require the police officer to submit additional evidence until he is satisfied that probable cause for issuance of search or arrest warrant exists. The US Constitution allows a judge to conduct additional interviews and question the police officer so that the conclusion of the police officer may be supported by adequate facts as mere belief or suspicion does not suffice. (Nathanson v. US 290 US 41) The only requirement is that the additional questions must be related to the particular case.
In this case, the magistrate failed to discharge his duty. The magistrate merely relied on the representations of the police officer that the suspect possessed narcotics. It must be stressed that the police officer did not even have personal knowledge of such possession of narcotics but the police officer also merely relied on the representation of “a reliable person.” The judge should have asked questions such as whether the surveillance was conducted by the police officer or whether the police officer or his informant has actually seen the suspect in possession of narcotics. The additional interview questions will provide the additional basis for the magistrate to issue search or arrest warrant.