Sunday, September 17, 2017
We are pleased to publish this guest post by Dr. Melissa Hamilton. Dr. Hamilton is a Senior Lecturer of Law and Criminal Justice at the University of Surrey School of Law. Her SSRN page may be accessed here.
Recent terrorist acts in the United Kingdom (e.g., Parsons Green tube station; Manchester) and the United States (e.g., Charlottesville; Alexandria) led me to consider the differences between the nations in terms of how they each have empowered (or not) local police officers to prevent terrorism. The focus herein is not on specialized counter-terrorist squads, border patrols, or immigration enforcement. Instead, this discussion concerns search and seizure powers of police officers on the streets when they might encounter potential terrorist activities.
The UK Parliament has afforded street officers special investigatory powers with respect to terrorism that US officials have not. This disparity suggests that in the UK, line officers are more likely seen as having a potential role to play in preventing and investigating illegal activities that rise to the level of terrorism. One wonders why US officials, whether federal or state, have not likewise more prominently embraced the capacity and abilities of local police officers in this respect.
In brief, the UK’s Terrorism Act 2000, as amended, permits police to take certain search and seizure actions that they would otherwise not have the legal ability to perform regarding non-terrorist crimes. These include the following:
• Police may, within a specified area in which a senior officer “reasonably suspects that an act of terrorism will take place,” stop a vehicle, search the vehicle and items within, and search persons in the vehicle. Police may stop and search any pedestrians in the designated area. Such searches are permissible even without any suspicion that the vehicles or persons specifically are involved in terrorist activities or that evidence of terrorism will be found. In addition, within the specified area, an officer may seize any items that the officer “reasonably suspects may constitute evidence” of terrorism.
• Police may cordon off an area designated by a senior officer who “considers it expedient for the purposes of a terrorist investigation” for 14 days and order persons to leave the area, remove vehicles, and prohibit access by pedestrians or vehicles.
• Police may arrest without a warrant a person who is reasonably suspected to be a terrorist. The suspect may be detained for longer periods of time than non-terror arrestees. Under certain circumstances (generally regarding risk of violent retribution or loss of evidence), police may decline to notify the terror suspect’s family or friends of the detention and/or deny the suspect access to counsel.
It appears reasonably likely that similar provisions would be upheld by American courts within the Fourth Amendment’s search and seizure protections. These sorts of targeted rules arguably fall within the United States Supreme Court’s “special needs” doctrine. The Court has approved various exceptions in its Fourth Amendment jurisprudence when authorities are able to justify them as serving important governmental interests.
Examples of approved special-needs types of searches and seizures are drunk driving roadblocks, strip searches of arrestees at jail intakes, and drug tests of US Customs employees. Perhaps more relevant is the Supreme Court’s approval of certain suspicionless searches at the border because of the government’s heightened interest in national security. In another case, the high court in dicta noted that police actions to thwart an imminent terrorist act may justify a warrantless stop and search which would not otherwise be legally permissible in other circumstances.
Importantly, terrorism investigations should no longer be the exclusive domain of specialized and elite counter-terrorism squads. While intelligence gathering of terrorist groups may require targeted training, resources, and technological capabilities, group-based terrorism is not the only concern these days. Lone wolf terrorists are also wreaking havoc in Western countries. Empowering street officers to be able to detect, deter, and investigate all terroristic activities might well justify additional intrusions upon individual privacy and liberty to the greater public benefit.