Legal Advisory Opinion (Research Paper Sample)

A legal Advisory Memorandum to the Chief Sheriff, Saint Leo Police Department
Name:
Institutional Affiliation:
Date:
A legal Advisory Memorandum to the Chief Sheriff, Saint Leo Police Department
Summary of Facts
Narcissus is the Supervisor of Sexual assault unit at the Saint Leo Police Department. The unit consists of both male and female officers. He has a Facebook account that he accesses on a daily basis, sometimes from his department computer. On his Facebook page are several photographs of him, some of which are sexually suggestive. In other photos, he is dressed in a vampire costume biting the neck of a woman. Also on his page are photos of himself in his police attire. Officer Narcissus normally posts his opinion on politics, his complaints about his remuneration and working hours. He is also fond of posting his sexual achievements, and dislike for everything that the Saint Leo Mayor, who is seeking re-election, has ever done or omitted to do during his tenure.
The Saint Leo Sheriff has received complaints from Officer Narcisssus’ fellow officers and the public about his social media posts. The Police department‘s code of conduct forbids officers from engaging in any activity that paints the department in bad light. On one occasion, the Sheriff went into Narcissus’ office and turned on his computer without the officer’s consent and knowledge upon which she realized that the computer had been frequently used to access Facebook and other social media sites. She also came to found out that the computer had apparently been used to purchase sex toys and hunting equipment. She went to his Facebook page and saw all of Narcissus’ postings therein. On one strange child pornography site were photographs of children being sexually abused. When the Sheriff informed Officer Narcissus of her intention to bring him in for interrogation, the officer informed her that she had no was not entitled to use or access his computer to search for anything, upon which the Officer stormed into the department and began dismantling his office computer.
Issues Presented
From the above set of facts and circumstances, the following issues arise between the parties, that is, Officer Narcissus and the Chief Sheriff:
* Whether the Sheriff is legally justified to detain the officer following the events that unfolded and led to his arrest
* Whether the Chief has the legal authority and merit to question or interrogate Officer Nercissus
* Whether the Chief Sheriff had the right apriori to search the Officer’s computer
* Whether the evidence so obtained by the purported search is admissible and whether it can be used to found an action against the officer.
* Whether Officer Nercissus is entitled to any Constitutional or common law rights during his questioning by the Sheriff, if any
* Whether there is any legal restrictions the Sheriff can place on her officer’s use of social media communication sites such as Facebook.
* Whether the officer is in breach of the Department’s Code of conduct of conduct and work ethics.
* Whether the Officer used excessive and unreasonable force in the circumstances in arresting Nercissus
Arguments Presented by Each Side
According to the above scenario, there are mainly two parties or sides of the dispute. These are Officer Nercissus and the Sheriff. The best case for Officer Nercissus seems to be the invasion of his privacy rights by the Chief through unwarranted search and intrusion on his personal information. He may seek to argue that the search into his office computer violated his Fourth Amendment Rights and hence any evidence obtained thus cannot be used as a basis for his arrest and incarceration by the order of the Chief Sheriff.
On the other hand, the best case for the Chief Sheriff is the fact that the officer was in breach of the rules, regulations and codes of conduct of the Police Department that forbids actions such as his posting of posts on social media that are likely to bring the department into disrepute. She could also advance an argument to the effect that the officer, being a public officer, is not entitled to the protection of the Fourth Amendment where the search is carried out purely in good faith as an investigatory practice of police.
Applicable Law
* The Constitution of the United States
Prima facie, the case turns on whether Officer Nercissus is entitled to any rights and freedoms under the Fourth Amendment of the Constitution of The United States. The Fourth Amendment of the U.S Constitution which is the Bill of Rights deals particularly with search and seizure and states as under:
The right of the people to be secure in their homes, 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.
According to the Supreme Court, "a ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in the property and ‘search’ occurs when an expectation of privacy that the society is prepared to consider reasonable is infringed.”[United States v. Jacobsen, 466 U.S. 109, 113 (1984)]
Furthermore, Kerr (2010) posits that the main purpose of the Fourth Amendment is to "regulate police collection and use of evidence so that police are reasonable in their search and seizure of people and their properties" (p.1245). He argues that the main objective of the Fourth Amendment provisions is to prevent unnecessary and arbitrary intrusion of individual privacy hence offering protection to every citizen the protection of their right to privacy.
A search is however constitutional and consistent with the fourth amendment if it does not violate a person’s reasonable and legitimate expectations of privacy as the court had once stated in a U.S landmark case .[Katz v. United States, 389 U.S. 347, 361 (1967)]
* Federal Rules of Criminal Procedure[FED R.CROM.P.41 (b) (1))]
This Statute, according to Kerr (2010), governs search and seizure of information and gives federal courts the wherewithal to issue warrants to search for and seize evidence. He points out that the Supreme Court had once held that the police had power to search and seize evidence with the aim or intention of establishing the use of the device suspected of being used to perpetrate criminal activities.[United States V New York Telephone Co. 434 .US. 159 9 (1977)]
The Privacy Protection Act also governs the rights of U.S Citizens against unreasonable interference with their privacy rights as are Officer Nersissus’ rights to privacy on his social media sites. The courts have found that people have reasonable expectation of privacy in their personal computers.[42 U.S.C. 2000] [United States v. Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007]
David Leon Riley V California, 573 U.S. (2014)
Here, the U.S Supreme Court held in a unanimous decision that the search and seizure of the digital contents of the suspect’s phone without a valid warrant was unconstitutional and violated his rights under the Fourth Amendment. The suspect had been apprehended in 2009 after he was stopped by traffic police and upon search found with firearms in his car. His cell phone was also confiscated and on being searched certain videos, messages and photographs were found. He was then charged with some previous shootings in town.
In yet another landmark case touching on a similar issue as the one confronting the Sheriff, the U.S Supreme court decided ruled that any piece of evidence obtained in violation of the requirements of the Fourth Amendment cannot be used to institute a criminal prosecution either in federal or State courts and such evidence was illegal.[Map V Ohio, 367 U.S. 643 (1961)]
The law on proper procedure to be followed before and during an interrogation or questioning of any person suspected of having committed an offence as was laid down by the U.S Supreme in the Miranda Case where the suspect was arrested and taken to the police department where he was questioned for about two hours, signed a confession and charged with the offence of rape upon which he was subsequently found guilty and convicted. He appealed against the conviction arguing that he had not been informed of his rights under the fifth and sixth Amendments of the Constitution. The Supreme Court quashed his conviction and laid down certain prerequisite sine quo none conditions that law enforcement officers must comply with whenever they apprehend a suspect and take them to custody for purposes of interrogation. These include the right_[Ernesto Miranda V Arizona [384 U.S. 436, 86 S.Ct. 1602 (1966)]. These rights have come to be known as the "Miranda Rights”.]
* To be informed of his right to an attorney and that if they cannot afford one, that the state will provide them with one at the state’s expense;
* To be informed of his right to remain silent during the interrogation process; and
* To be informed of that anything they say then can and will be used against them in court of law.
* To be informed of the reason for his arrest.
Fishman (2012) explores the extent of electronic privacy in a government work place as is the case in this scenario. He analyses the Supreme Court ruling in City of Ontario V Quon. In that case, Sargent Jeff Quon, the defendant, had brought a suit against the Ontario Police Department, his employer. This was after he realized that the department had inspected some mobile phone text messages that he had sent and received on a pager used by the department. He relied on a number of authori...