Since September 11, 2001, the United States Congress and the Ohio General Assembly have passed laws, or simply strengthened those already in existence, for the primary purpose of helping law enforcement officials deal with the threat of any future terrorist attacks against civilians. 

Q.:  Does the law allow police officers to arrest someone who appears to be a terrorist?
A.:  The law forbids police from stopping or arresting someone based solely upon the assumption that a person’s race, ethnic or religious background suggests a tendency to commit a crime.  A police officer may, however, stop a person who fits the physical description of a suspect already wanted for a crime.   The police must base their decisions and responses upon the suspect’s conduct, physical evidence, or information gathered from an investigation. 

Q.:  How do  the police deal with terrorism?
A.:   Generally, the laws police use to conduct their investigations are the same as those used to investigate any other felony.  They can obtain search warrants and wiretaps, but only after they swear under oath to certain facts, and a judge finds that those facts provide probable cause to believe that the search or wiretap will produce evidence of a crime.  Likewise, police can arrest a person, with or without a warrant, but only if there is probable cause to believe that the person has committed a crime. 

In any event, a person who believes that he or she was harmed by the police action will almost always be able to challenge the police conduct in court at a later date, when a judge would determine whether the police action was legal or illegal.  A judge who determines that the police conduct is illegal can impose various remedies:  in a criminal case, the evidence can be suppressed, meaning that the prosecution cannot use it at a trial to help convict the defendant; in a civil case, the judge (or jury) can award monetary damages (money to make up for the trouble) to the person harmed.

Q.: What else does the Patriot Act do?
A.:   The Patriot Act implemented changes to many existing federal laws.  Those laws address matters that fall into three general categories:  traditional criminal matters such as wiretaps and money-laundering;  immigration matters; and privacy matters dealing with electronic communications, educational records, bank records, credit records, and library records.  Through amendments made to the privacy laws under the Patriot Act, the police now can get more information, and they can get it more quickly than before.
 
Q.: What existing laws have been strengthened to deal with terrorism?
A.: The Patriot Act amended several federal statutes to strengthen domestic law enforcement’s ability to investigate suspected terrorists.  For instance, federal agents now can get a court order for a “roving wiretap.” This allows police to conduct continuous surveillance on cellular telephones even if those telephones are used outside the usual geographic jurisdiction of the federal court that ordered the wiretap.  In addition, federal agents now can conduct secret searches, commonly referred to as “sneak and peaks.”  Traditionally,  federal agents had to notify a person that his/her property had been searched as soon as the search was completed.  When the subject of a search warrant was not present, agents generally would leave a copy of the search warrant or provide an inventory of anything taken during the search.  Now, federal agents can get a court order permitting them to delay notice of the search for a “reasonable period” if the court finds reason to believe that providing immediate notice may have a “negative result.”  This “sneak and peak” portion of the Patriot Act has prompted much debate about its meaning, which the courts ultimately will have to determine.

Q.: Is the Patriot Act temporary?
A.: The Patriot Act contains a “sunset provision” that ends most, though not all, of the Act’s provisions as of December 31, 2005.  The sunset provision allows Congress to determine how well the provisions have worked and how responsibly they have been applied.  Some of the provisions due to “sunset” are: 
• long-arm jurisdiction (far-reaching authority for U.S. courts) over international money-laundering offenses;
• prohibitions against and penalties for international money-laundering;
• mandatory detention of suspected terrorists;
• Visa integrity and security (to make sure long-term foreign visitors to the U.S. are authorized to be in the country);
• the Attorney General’s authority to pay rewards to combat terrorism;
• DNA identification of terrorists and other violent offenders;
• disclosure of educational records;
• funding of domestic police and firefighters to combat terrorism; and
• compensation for victims of terrorism.

Q.:  What portions of the Patriot Act are NOT due to “sunset” in December 2005?
A.:  The sunset provision does not apply to certain portions of the Patriot Act, including those that allow:  law enforcement agencies to share grand jury information; judges to be appointed for cases arising under the Foreign Intelligence Surveillance Act (FISA); increased ability to subpoena electronic communications records; “sneak and peak” search warrants; and “roving wiretaps.” 

5/23/2007
 
Law You Can Use is a weekly consumer legal information column provided by the Ohio State Bar Association. This article was prepared by Thomas A. Matuszak, Assistant Lucas County Prosecutor.