I guess like most Americans, I grew up thinking I lived in the best country in the world with the best legal system in the world. But as I grew older, I began to question many of the things I once assumed without hesitation.
Now I am not saying that the United States isn’t good. Nor am I saying that we don’t have one of the best legal systems in the world–the Anglo-American legal system (I guess for this reason, citizens of Britain should be included in what I am saying). But is our legal system really so unique in some of its due process requirements? And moreover, is our system the only legal system that requires searches of homes, etc. only be done with a search warrant?
Are you serious? Is the United States the *only nation on Earth * that requires legal authorisation before private homes may be searched?
Funnily enough, a country doesn’t require a constitutional guarantee – or even for that matter, a written constitution – before police are prevented from lawfully entering private property at whim.
Under the common law, landowners (or tenants or assignees as the case may be) enjoy a right of exclusive possession over their land. Physical interference with that right may give rise to an action under the tort of trespass. There are also certain statutory rights conferred on landowners over possession of their land and attendant sanctions.
On search warrants, there are certain common law powers of entry, search and seizure. Beyond these, there are statutory powers of entry, search and seizure with a search warrant, or without a search warrant. Like the law governing search and seizure in the United States, certain considerations are applied in the determination of whether a search warrant is required, or whether a search was lawful.
Unlike the United States, we do not have a constitutional guarantee against unlawful search and seizure. But that doesn’t mean there is no process to be followed in these dark and unenlightened lands.
The warrant requirement of the Fourth Amendment comes directly from the common law of England. You folk were the first to elevate it to a constitutional requirement, but it’s part of many legal systems descended from the English system. You’ll find it in legal systems throughout the Commonwealth, sometimes as part of the common law or statute law, sometimes, constitutionally entrenched.
That provision has been interpreted as entrenching the warrant requirement.
As well, the common law systems have always given particular protection to dwelling houses. That phrase “A man’s home is his castle” is not just a bit of hyperbole - it’s straight out of numerous court decisions in England, Canada and other common law jurisdictions, emphasising the particular sanctity of private homes.
Now, there are some exceptions, such as “hot pursuit” where a warrant is not required to arrest a fleeing felon, and “exigent circumstances”, where it’s an emergency (e.g. - need to go into a house to rescue a kidnapped child). But in general, the common law has always protected private dwelling houses with particularly strong requirements for searches.
Don’t know enough about criminal procedure in the civil law system to comment on the situation in those countries.
Okay, let’s try this again. Is the requirement for legal authorization before a private property search a more intergral facet of legal systems based on English common law than, say, other European nations or Asian nations?
From the Encyclopedia Britannica, article “Search and Seizure”:
In U.S. law (including both statutes and court decisions) there are all sorts of special circumstances and exemptions to the principle that a warrant is required for a search; I’m sure that other countries have similar complexities, but the general notion that a judicial body needs to issue a warrant to authorize the search before the police can search someone’s private property is, at least in principle, a common feature of the laws of modern democracies.
You definitely need a search warrant in The Netherlands. I’m quite positive that this follows also directly out of sec. 8 of the Rome Treaty (European Treaty on Human Rights). This guarantees the right to privacy. If I’m correct in this latter bit (I haven’t checked it in the literature) you’d need a search warrant in any country which adheres to the Rome Treaty. That includes most countries in Europe and quite a few in the former Soviet Union.
Nope. In France, a judge must deliver a “commission rogatoire” or “mandat de perquisition” in order to allow the police to search your home. Also, searching homes wasn’t allowed during night time, except in case of emergency, but apparently, the current government wants to allow searches during the night (or has already done so).
As mentionned by someone, the police has extended powers in case of “flagrant delit” (“obvious crime”), which means they caught you while you were commiting a crime or just after you commited it. The procedure is also shortened in this case (which often results in judges “chain-sentencing” people after hearing the criminal and a lawyer who’s barely aware of the case during 5 whole minutes…though this doesn’t apply to serious crimes). But I don’t know if a “flagrant delit” case allows the police to search your home without a warrant
