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9/11 AND RIGHTS OF PRIVACY OF AVERAGE CITIZENS

9/11, Rights of Privacy, US citizens, 4rth Amendment of US Constitution, US Supreme Court

On May 13, 2004 the New Jersey Supreme Court of USA ruled that the police can search a residence if they receive a 911 telephone call and where the police fear that something is not okay.

The above said ruling of the Supreme Court of the New Jersey allowing the police to enter the premises of an individual after receiving a call at 911, and further taking action fearing that something is not okay finds its precedence in the spate of rulings that have evolved after the September 11 attacks in 2001, in turn creating the national Homeland Security Program, both at the federal level as well as each of the nations respective states. The ruling can also be presumably said to be a result of some of the stringent measures announced and part made thereof of the Patriot Act, which aims to address the issue of terrorism both at the national as well as international level.

The subject ruling of the Supreme Court of New Jersey allowing the officers of law enforcement agencies to invade the privacy of individuals stands in stark contrast to and more than violative of the Amendment IV of the Federal US Constitutions under "The Right of Privacy". Nevertheless the same has been made part of the Homeland Security Program and the Patriot Act, in effect superseding the 4th Amendment of the US Constitution.

A brief view of the 4th Amendment of the US Constitution's specific wordings on the rights of privacy note that "it is 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". (Erowid, 1999)

The ruling of the New Jersey Supreme Court allowing the police to enter the premises of an individual after receipt of a call at 911 also finds its precedence by the measures initiated by the Justice Department which has been seeking to expand its anti-terrorism powers since the September 11 attacks. In addition, the measures taken under the Patriot Act and the Homeland Security Programs have also provided significant powers and success to nations' various intelligence agencies, in terms of intelligence gathering, information about terrorists, their activities, and terrorism in general. Yet there are both opponents as well as proponents for these measures. For example the proponents cite the significant strides made by the nation's law enforcement agencies in gathering key intelligence reports for preventing terrorist attacks, and furthermore additional measures were also demanded to improve the existing network and efficiency of the country's intelligence agencies. While, opponents view the same measures as not only violative of the 4th Amendment of the US Constitution, but also questioned, whether these measures were being used in simple and ordinary cases where there was no evidence or links with terrorism. Thus, the Supreme Court's decisions, and the invasion of privacy by the State and the law enforcement agencies are found to play a key role in the interaction between private citizens and the police.

The Case Study
The subject case which has been cited as an example involves one Gary Frankel, from where the call was made at an open line 9-1-1. As soon as the call was made from the residence of Mr. Frankel, the concerned police department, namely the Freehold Township Police Department tried to respond, but there was no one at the other end. Assuming to be a situation of emergency, the police department's dispatcher on duty called back, and he received a busy signal. The two acts, first the call from a residence and no one at the other end, and second instance, when the same number was dialed back, the receipt of a busy signal indeed prompted an alerting situation. An officer was immediately dispatched to the address from where the call was made with the prior information that an emergency number had been dialed from the residence, yet a confirmation of the same revealed no response, and instead a busy tone was heard over the phone. The police officer on patrol duty arrived at the respective residence, that of Gary Frankel, and observed a white sheet hung behind the principal door of the house as well as the adjacent windows. The white sheet thus obstructed any view of the inside of the house. Upon knocking the door, Frankel first poked his head through behind the white sheets, both surprised and nervous, and then opened the door. The police officer explained the reasons for his appearance, stating that the police department had received an emergency call from the residence, and were there to find the cause of the emergency. Frankel, already surprised and nervous denied and asserted that no such was ever made from his residence. The police officer suggested that there might be someone else in the house that may have made the emergency call. Frankel's response was that he lived alone in the house. The response alerted the officer even more, and made him cautious, and at the same instance asked Frankel to step aside so that he could enter the house. As a measure of precaution, the officer first patted Frankel to confirm whether the latter had any weapons or anything dangerous on him, and later asked if he could check the inside of the house to ensure that indeed Frankel was alone, or that there may be an injured person, or one who may be suffering from any domestic violence. Upon this Frankel asked whether the officer had a search warrant, and finding that there was none, refused entry to the police officer. Frankel’s second question was whether there was any need for an attorney at the moment. The police officer did not reply, and instead radioed back to the police headquarters for assistance, for his own safety as well as from fear of finding someone needing police assistance inside the house. (Summary, 2004)

In continuation of the case summary, it was observed that, while the officer waited for police assistance to arrive, he had a brief conversation on the porch of the house. During this brief conversation, the police officer learnt that Frankel had been using a computer, and that the computer may have mistakenly dialed the emergency number 9-1-1. Further inquiry also revealed that Frankel also possessed something that he did not want the police to witness including 'some sexual stuff', citing embarrassment as the reason for not wanting the police to see the same.

In order to confirm, whether the emergency number was accidentally dialed, the police officer asked the police headquarters to dial the number of the residence once again, and the response was the same. That the tone received was a busy signal, further aroused suspicion on the part of the police officer, and somewhat confirmed his doubts about somebody being present in the house. Upon this, owner of the house, Frankel retrieved two cordless phones, to show and prove that he did not dial any emergency number. The police officer called the headquarters and asked them to call back again, and this time, the bell was ringing on one of the cordless phones. This further confirmed the fact that indeed there was someone inside the house, and that Frankel may have retrieved the cordless phone so that the potential caller inside the house could not complete the call to the police.

Meanwhile, police assistance arrived at the request of the police officer on patrol, and the officer searched the house. The search however did not reveal the presence of any individual, except for the presence of marijuana and marijuana plants. Frankel was placed under arrest, and charged with the possession of, and using the premises for the manufacture of marijuana. The trial court however rejected the State's contention that there existed justification for a warrantless search. The court also found that Frankel had not made the emergency call, and that the nervous behavior of the defendant, the receipt of the busy signals, and the police officer's honest concern for the safety of an individual prompted an emergency, hence there existed insufficient evidence to search the house.

The ‘Appellate Division’ however reversed the order of the trial court, and ruled that the officer on duty had an 'objective and reasonable grounds to search the house. Furthermore, the police officer acted in accordance with the emergency doctrine, which allowed him to enter the house without a search warrant. The motion to suppress the evidence was thus reversed, and the Supreme Court affirmed and certified the decision of the Appellate Division Court. Summing up the decision, the Supreme Court thus ruled that 'the totality of the circumstances justified the officer's entry into the residence of Gary Frankel without the search warrant, and acted in response to the open line 9-1-1 call.

Legality of the Decision to Allow Police Personnel to Enter The Premises of Private Residences Without A Valid Search Warrant - Analysis

Though the above case is evidently against the 4th Amendment of the US Constitution and its 'Right to Privacy' article contained within the said Amendment, nevertheless the situation in the Gary Frankel case finds precedence in the honest and justified decision of the police officer on duty at the time of the incident. The same action also finds due credible standing in view of the circumstances surrounding the state and the nation, both of whom are at present in pursuit of programs to the likes of Homeland Security and acting under the provisions of the Patriot Act.

Giving its verdict on the ‘Gary Frankel’ case of New Jersey, the Supreme Court noted that the 4th Amendment of the United States Constitution, and in particular its Article 1, Paragraph 7 of the New Jersey Constitution, a search carried out with out a valid search warrant is invalid. The findings also noted that the 'burden falls on the State to prove that the said search was justified by either of the few exceptions provided within the warrant requirement (P.9)

The court further explained the circumstances where the emergency aid doctrine is applicable, according to which the police personnel acted in the Gary Frankel case. The court thus noted that the emergency aid doctrine warrants requirements from a commonsense perception, which may require public safety officials to enter the premises of private residences for the prime objective and purpose of preserving the life of an individual. Further referring to the Article 1 Paragraph 7 of the 4th Amendment of the US Constitution, the court also clearly emphasized that there is no such provision in the said Amendment, that the law enforcement personnel and other public safety officials simply stand by in the face of 'imminent danger' and delay any potential life saving measures/actions while possible critical and precious time is wasted while pursuing a valid warrant to accomplish the same objectives. It was further clarified by the court that emergency aid doctrine also requires that public safety officials and other law enforcement personnel 'possess objectionable and reasonable grounds to believe, "not certitude", that there exists imminent danger, and the need for immediate and prompt action. The said ruling also noted that the fact that there was no danger, or that none was found after the search does not nullify the need for taking a prompt decision on the part of the law enforcement personnel. Hence, the reasons for taking action under the emergency aid doctrine simply follow the scope of the search that is acted upon reasons and objectives as understood by the law enforcement personnel at the time of the search. The evidence, if any found at the premises, too was ruled to be admissible whereby the law enforcement personnel were lawfully present, and that the limits of scope of the search are not trespassed or exceeded. (Pp.10-13)

In further clarifying the reasons for the entry and search into a private residences by police personnel without a valid search warrant, the court provided a three-prong test to determine as well as remove any ambiguity that may arise from the application and use of the emergency aid doctrine. First, as also reiterated in the above paragraphs, there must be 'objectively reasonable grounds' to believe that an emergency does exist which requires immediate assistance to protect or preserve life, or prevent serious injury. The second test notes that the primary motivation of the police personnel to enter a private residence without a valid warrant must be to provide assistance, and not search for and seize evidence. Third test as noted by the court was that there must be "reasonable nexus between the emergency and the area or the places to be searched. (P.12-16)


The court in its opinion also clarified that indeed a call at open 9-1-1 should be presumed to be of emergent nature, and considered an SOS call, which in itself calls for immediate and prompt action on the part of the public safety officials. The court, however, rejected the State's contention that a call at 9-1-1 which is abandoned, or hung-up, or upon confirmation the same is found is buys, does not provide the law enforcement personnel justifiable grounds which necessitate an entry into a private residence for the only purpose of investigation. Further the court also refutes the position of the defense that the knock on the door remained answered, hence justifying an entry. The proper approach, in view of the court was the adoption of, and weighing of 'competing interests, including the privacy interests of the home' against any action taken by the law enforcement personnel to protect or preserve life, all of which falls and should be followed 'under the totality of the circumstances standard'. (Pp. 16-20).

In the subject case of Gary Frankel, the police officer on duty was in possession of 'reasonable and justifiable grounds' which when collectively analyzed with 'rational inferences' leads the court to deduce that the officer's entry into the residence of Frankel was justified under the emergency aid doctrine. As also reiterated in the opening paragraphs of the case study, the police officer on patrol duty had more than sufficient evidence including the presumption that the individual who tried to call the open line 9-1-1 was prevented from completing the call, and thus in the immediate opinion of the police officer, he or she was in urgent need of assistance. This deduction on the part of the police officer was accepted as a positive motivation and the action taken in equally complete honesty, as well as the belief that there indeed existed an emergency of a potential victim lying somewhere inside the house of Frankel. The court also found that the action of the police officer was well within the scope of the search culminating in the emergent mission. Hence, the basis as well as the scope of the search though without a valid search warrant was found to be well within the constitutional bounds, and therefore any motion to suppress should have been denied. (Pp. 25-27)

At this juncture, the rights of the home owner were also accepted, as he or she (Frankel in our subject case), had every right to ask and demand a search warrant, as also provided for in both the federal and state constitutions. Thus, the assertion of the constitutional rights could in no way be taken as a reason for a warrantless entry into a private residence. (Albin, 2004)

Similar Rulings in Other States
A similar ruling to enter the premises of private residences without a valid search warrant was also allowed by the 5th Circuit federal appeals court in Texas as well as two other states, and though comments from two of the dissenting judges named the decision as being "the road to hell". Nevertheless, the 5th U.S. Circuit Court of Appeals confirmed its ruling and clearly noted that there was no requirement of a valid search warrant, nor an arrest warrant, if and when the personnel of the law enforcement felt that it may jeopardize their safety. Further the same court also ruled that any evidence discovered during the search was admissible as long as the search was of cursory inspection, and further that the police personnel entered the premises for a legitimate law enforcement purpose and believing it to be dangerous. The ruling includes the states of Louisiana, Texas and Mississippi. (Associated Press, 2004)

Conclusion
The above case study of Gary Frankel and the State of New Jersey Supreme Court's ruling that allowed and legalized the entry of police personnel and other public safety personnel into private residence without the need for a valid search and arrest warrant though marked the beginnings of a new era in legal circles of the nation. Yet, the totality of circumstances, the pursuit of national and state programs such as Homeland Security, and the passage and implementation of the Patriot Act have given credence to numerous similar rulings, including the right to search homes as well as vehicles without the need for a valid search warrant/permit. Even a brief history of the legality and laws on privacy reveal that it was in the decade of the 1960s, when the United States Supreme Court first popularized the idea of legal rights to privacy, (such as the case of "Westin, 1967"). The Supreme Court initiated its rulings by relying on the concept of constitutional rights to privacy, thus setting standards for lawful search and seizures (such as the ruling in the Katz v. United States, 1967). It could thus safely be deduced that the present spate of events, in particular the post 9/11 era has promulgated an entirely new concept of privacy. The concept and obsession of Privacy has thus found a totally new meaning, such as was the case of Gary Frankel’s case, as well as confirming the need for enhanced set of security and preventive measures, not only at the respective state level, but across the nation. (Prewit, 2001)

References
Erowid, "The 4th Amendment and Related Supreme Court Decisions: Amendment IV of the Federal Constitution - The Right To Privacy", 1999, and available at
http://www.erowid.org/freedom/courts/courts_decisions_privacy.shtml

Unknown author, Summary of the case; Docket No.: a-90-02; State of New Jersey v. Gary N. Frankel, Decided: 12-May-2004
http://lawlibrary.rutgers.edu/cgi-bin/datefind2.cgi

Albin, J., writing for a majority of the Court. State of New Jersey v. Gary N. Frankel (A-90-02); Argued December 2, 2003 -- Decided May 12, 2004
http://lawlibrary.rutgers.edu/courts/supreme/a-90-02.opn.html

Associated Press, '5th Circuit gives police new power in searches, Evidence OK in some no-warrant searches', issue of March 26, 2004, and available at
http://www.chron.com/cs/CDA/ssistory.mpl/metropolitan/2469360
http://users.ev1.net/~corpus/investigate_040326b.html

Prewit, K., "Is Privacy Now Possible? A Discussion, written for the New School for Social Research, 2001
http://articles.findarticles.com/p/articles/mi_m2267/is_1_68/ai_75658591/print,

Additional Readings
Fineman, Martha. The Neutered Mother, the Sexual Family, and Other Twentieth-Century Tragedies. New York: Routledge, 1995.

Foucault, Michel. The Order of Things. New York: Pantheon, 1971.

Gillman, Howard. The Constitution Besieged: The Rise and Demise of LochnerEra Police Powers Jurisprudence.
Durham, N.C.: Duke University Press, 1993.

Habermas, Jurgen. Theory of Communicative Action, Vol. I. Boston: Beacon Press, 1981.

"An Alternative Way Out of the Philosophy of the Subject." In The Philosophical Discourse of Modernity. Cambridge: MIT Press, 1987.

Between Facts and Norms. Cambridge, England: Polity Press: 1996.

Posner, Richard A. Sex and Reason. Cambridge: Harvard University Press, 1992.

Richards, David A.J. Women, Gays, and the Constitution. Chicago: University of Chicago Press, 1998.

Tribe, Lawrence. "Rights of Privacy and Personhood." In American Constitutional Law. 2d ed. Mineola, N.Y.: Foundation Press, 1988.

Brandeis, Louis D. and Samuel D. Warren. "The Right to Privacy." Harvard Law Review 4 (1890).

U.S. Senate. Omnibus Crime Control and Safe Streets Act. Rept. No. 90-1097 (1968).

Schwartz, Paul M., and Joel R. Reidenberg. Data Privacy Law. Charlottesville, VA.: Michie, 1996.

Warren, Samuel and Louis D. Brandeis. "The Right to Privacy." Harvard Law Review 4 (1890): 193-220.

Westin, Alan. Privacy and Freedom. New York: Atheneum, 1967.

Etzioni, Amitai. The Limits of Privacy. New York: Basic Books, 1999.

Alderman, Ellen and Caroline Kennedy. The Right to Privacy. New York: Random House, 1995.
Published: 2009-12-02
Author: Ziauddin Khan

About the author or the publisher
Dear Mr. Eric, Bonjour
I have been writing business articles for the last 12 years, and also wrote academic articles for 5 years. However, am continuously in search of people and organizations where my write ups will indeed be appreciated.
Just to give you a glimpse of what I have written on, this includes social,political subjects, histories of countries,geography, aerospace, religions, etc. I am also fluent in spoken French, and can try writing as well.Regards Zia

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