Exceptions to Search without a Warrant

Aug 26, 2020 Letters

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DEAR EDITOR,

Reference is made to Timothy Jonas’s letter (KN Aug 22) on the arrest of Jones and confiscation of materials. Jonas worries about the message sent on searching a home for loot without a warrant. It brings back memories of Burnhamism. The law allows for some searches without a warrant.
The Jones’s arrest stemmed from his refusal to be voluntarily taken into custody for questioning about an alleged crime. It is standard in Guyana for people to be taken into custody, many voluntarily, for questioning. It was a common practice during the Burnham and Hoyte days and over the last five years for dissidents to voluntarily show up at a police station to be quizzed about political activities or some innocuous matter (like value of Pradoville property) to shame or embarrass political opponents. What occurred to Jones does not fall under the latter category. As we read, the police were investigating stolen loot in what is known in my sociology studies as racketeering crime.
The public is mindful of invasion of privacy but also want to deter public officials from looting goods that were meant for them. It is alleged that no warrant was produced for the seizure of “missing goods” bought by the State and found their way at Jones’s home. It is reported that Jones is a supporter of PNC and worked for the PNC led government.
There is no evidence of witch-hunting in the search or political victimization relating to the arrest. It is seen strictly as a criminal matter pertaining to theft of government property. The court will decide the issues of the requirement of a warrant and whether a crime of theft occurred.
Regarding Jonas’s concern of a search without a warrant, the law allows invasion of privacy in certain situations. Mr. Jonas, an outstanding lawyer who deserved SC status and who impressed the world with his legal arguments in election cases and press conferences, knows that a warrant is not always needed to effectuate a search or to question a criminal suspect or make an arrest. While it is the law to have a warrant (court issued permit) before entering private property, unless the person approves of a search without a court’s warrant, police can forcibly enter into a private property under certain conditions and can also take someone into custody. This aspect of the law is well known by those who study US constitutional law. There are ample historical precedents in case law. I taught the concept and practice in courses on US constitutional law. Indian Supreme Court also sanctions use of evidence from forced entry in certain situations and borrows from US Supreme Court cases in her development of constitutional law. And Guyana case laws borrow heavily from Indian jurisprudence.
The US Supreme Court jealously protects privacy rights, even those of data stored on a cell phone. The police can’t invade a cell phone (without a warrant) because it is private property except if it is to physically protect the police from harm of a concealed weapon (like a razor blade or a remote triggered bomb). Similarly, the police can’t enter a home or property without a warrant. But the court grants exceptions and these exceptions have been upheld in criminal cases.
If the police believe with reasonable evidence that a crime would be committed or a life is endangered, they can force their way into a private property. The court would determine afterwards if the evidence acquired from a forced entry can be used in a criminal prosecution. The police can take someone into custody on same ground. From what was reported in the press, the police went to Mr. Jones’s home to interview him about unaccounted goods. He refused to be interviewed and it is reported, he let loose the dogs on the police. He rightly asked for a warrant. The police have a right to question him about a crime and don’t need a warrant if they have reasonable suspicion that he was involved in or about to commit a crime or if they believe he would destroy evidence relating to a crime or a life was endangered. In the OJ Simpson case almost three decades ago, the police entered Simpson’s home without a warrant because they found blood at his gate and jumped over the wall to gain entrance; they felt a life was in danger. Evidence obtained inside his home was allowed by the court against Simpson in the prosecution. To search Jones’s home, the police needed a warrant unless the police saw in public view evidence of a crime or fear a cover up of a crime or destruction of evidence. Jones could have avoided this problem by simply allowing himself to be interviewed at his convenience or accompany the police to a police station – of course to be interviewed in the presence of his lawyer as is the law in the US. This would not have led to a search of his property for stolen goods and evidence gathered against him.
The court would decide the issue of the right of Jones to privacy balanced against the right of the public to protect ‘stolen’ goods that belong to the nation.

Yours truly,
Dr. Vishnu Bisram

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