NCJ Number
52920
Journal
SCHRIFTENREIHE DER POLIZEI -FUEHRUNGSAKADEMIE Volume: 5 Issue: 2 Dated: (1978) Pages: 143-156
Date Published
1978
Length
14 pages
Annotation
LEGAL QUESTIONS ARE DISCUSSED AS TO THE NECESSITY FOR THE POLICE TO PROTECT CITIZEN'S CIVIL RIGHTS AND AT THE SAME TIME TO ENCROACH UPON THESE RIGHTS BY SEARCH AND SURVEILLANCE IN CRIMINAL INVESTIGATION.
Abstract
TO ENSURE LEGISLATION FLEXIBLE ENOUGH TO COVER POTENTIAL CONFLICTS, LEGISLATORS ARE PERMITTED TO DELEGATE CERTAIN LIMITED AREAS OF REGULATORY POWER AND TO MAKE USE OF GENERAL LEGAL CONCEPTS, BUT THEY MUST DEFINE POLICE DUTIES, REGULATORY AUTHORITY NECESSARY TO FULFILL THESE DUTIES, AND WHEN AND HOW REGULATIONS ARE TO BE APPLIED. LEGAL AUTHORITY FOR POLICE ACTION IS BASED ON SUSPICION OF A CRIME IN THE CONTEXT OF CONCRETE EVENTS AND THE PRESENCE OF DANGER TO PUBLIC ORDER AND SECURITY. ALTHOUGH ABSTRACT AND CONCRETE DANGERS CANNOT BE DIFFERENTIATED IN A TECHNICALLY DEVELOPED SOCIETY, RESPONSIBLE AUTHORITIES MUST EXPAND THEIR POWERS BEYOND DANGER DETERRENCE TO DETERMINATION OF DANGERS AND PRECAUTIONARY MEASURES PRIOR TO ACTIVITIES SUCH AS SEARCH AND SURVEILLANCE. IN THE LATTER CASE, LEGAL FREEDOMS AND BASIC RIGHTS CAN BE LIMITED BY LEGAL PROVISIONS IN CONFORMANCE WITH THE PRINCIPLES AND PROCEDURES OF THE CONSTITUTION (GENERAL AUTHORIZATION). NEVERTHELESS, THE LEGALITY OF CERTAIN PROCEDURES IS VERY DIFFICULT TO ASCERTAIN: PHOTOGRAPHS TAKEN WITHOUT THE SUBJECT'S KNOWLEDGE IN DRUG ABUSE CASES ARE PERMITTED FOR AVERTING DANGER UNDER THE GENERAL AUTHORIZATION RULE AND CAN BE USED IN COURT EXCEPT IF TAKEN AT THE INDIVIDUAL'S RESIDENCE; THE GENERAL AUTHORIZATION RULE ALSO APPLIES TO SECRETLY TAPED MATERIALS, BUT A VERY HIGH DEGREE OF DANGER MUST BE PROVEN AND ACTUAL TAPE RECORDINGS OF TRANSACTIONS BELONG TO A SENSITIVE AREA OF PROTECTED RIGHTS SO THAT THEY CANNOT BE USED IN COURT. FINGERPRINTS, PICTURES, AND DIARIES MAY BE STORED FOR FUTURE USE, BUT THE CONTINUATION OF DANGER MUST BE ESTABLISHED FOR DATA AND TAPES GATHERED FOR DEFENSE AGAINST AN IMMEDIATE DANGER. DATA FOR CRIMINAL INVESTIGATIONS CAN ONLY BE GATHERED IF COLLECTED IN AN ADMISSIBLE MANNER AND IN THE IMMEDIATE DANGER CONTEXT FOR THEIR ORIGINAL PURPOSE. IT IS CONCLUDED THAT DESPITE SHORTCOMINGS LEGAL OPTIONS FOR CARRYING OUT POLICE DUTIES ARE NOT BLOCKED BY THE CONSTITUTION AND ATTEMPTS ARE BEING MADE TO CLARIFY LEGAL UNCERTAINTIES RELEVANT TO POLICE WORK. REFERENCES ARE SUPPLIED. --IN GERMAN. (KMD)