SCJN: Mexico's Supreme Court OKs Warrantless Police Searches

Translated by Yaqui for Borderland Beat from: El Universal

Extra Material from: El Economista
By: Leopoldo Hernández -Feb 13, 2018
mailto:justiciaysociedad@eluniversal.com.mx

The Totality of  Mexico's Supreme Court , La Suprema Corte de Justicia de la Nación, declared the constitutionality of  police stops, inspections and / or searches of persons and vehicles without a judicial order, but only when there is a reasonable suspicion or flagrancy, in accordance with the National Code of Criminal Procedures.

While resolving an action of unconstitutionality brought by the National Commission of Human Rights (CNDH) and the National Institute of Transparency (Inai) there were eight votes in favor and three against, such the action of the Minister Javier Laynez Potisek was endorsed.

The decision ruled against the wishes of the CNDH and the Inai.

The ruling deals with articles 132, Part VII; the third paragraph of 147; Parts III and V of Article 251 and Articles 266 and 268 of the National Code of Criminal Procedures, which the CNDH challenged that it considers the ruling a violation of the rights to freedom of movement of persons, legal security, privacy, violation of personal integrity and private lives.

The Minister of the Supreme Court of Justice of the Nation (SCJN), Javier Laynez Potisek, proposed to declare the Constituitionality valid for the faculty of police elements and security authorities to conduct searches of people and vehicles without prior judicial authorization.

At the beginning of the discussion of two actions of unconstitutionality against various precepts of the National Code of Criminal Procedures, the minister explained to the plenary that they must consider the review of persons and vehicles must be guaranteed as long as there is a "reasonable suspicion" of the existence of an illicit action and not by the physical appearance of a person.

"The police forces,  by their very nature, enjoy an empire , ie, it is a public force, it is the public force of the State. It would be illogical to think, as the plaintiffs suggests, that the security agents should obtain the prior consent of the individuals to carry out these inspection actions  and, if they fail to do so, they should withdraw without further ado, " he said.

"Reasonable suspicion can not be justified by any abstract circumstance such as the person's physical appearance, manner of dressing, speaking or behaving. It can not derive from a simple suspicion that comes from a subjective criterion of the people, based on the presumption that by the simple appearance of the subject it is possible to determine that the person is a delinquent ".

The ministers debated it and as of now six of them spoke out for declaring Constitutional several of the articles challenged by the National Commission of Human Rights (CNDH) and the National Institute of Transparency, (Inai) and Access to Information and Data Protection.

One who ruled against was Arturo Zaldívar Lelo de Larrea, because his consideration of the code does not establish minimum guarantees in favor of the citizen in the way in which the revision operates. "The minimum guarantees of protection of fundamental rights are not generated in both inspections and reviews, so I will be voting this issue unconstitutional," he said.

Today, the ministers will continue the analysis of other arguments brought forth by the CNDH and Inai. The other points that the ministers will analyze are the arrest of a person or persons in flagrante delicto (legal terminology for "Caught in the Act" ) for crimes that require a complaint, assurance of goods or bank accounts, precautionary seizure, intervention of communications for geolocation in real time and home safeguards.

Also being discussed is  the duration of  precautionary measures, the Constitutionality, of the arrest of up to 15 days as a measure of urgency and international legal assistance at the request of the accused. All contained in the code.

It emphasizes that the minister's project proposes to declare Constitutional the arrest in flagrante delicto ( Caught in the Act) for crimes that are persecuted by complaint, because the Constitution does not distinguish what kind of behaviors apply for these detentions.

It is foreseen that in order to establish the assurance of bank accounts must be done with the prior authorization of a judge, as well as the precautionary seizure and seizure of assets for a value equivalent to the damage caused with the crime. The minister will propose to invalidate the geolocation in real time.

The Minister José Fernando Franco González stressed in his argument against, that it is " in reality, the problem lies, for me, in a matter of legal security for people who may be subject to these acts of criminal annoyance. The National Code of Criminal Procedures does not even establish basic guidelines that regulate the actions of the authorities in relation to these figures," he said.

For his part, the president of the SCJN, Luis María Aguilar Morales, considered the decision ruled is ideal, necessary and proportional, "because we, ie the Court, seek to protect the human rights of the community for reasons of legal security", as well as to protect the rights of the truth, justice and the reparation of the victims.

The measure, he added, is ideal because the intervention of fundamental rights is likely to achieve the proposed goal, because it allows the police to collect test data that may serve in the investigation of crimes and added that it is "the least invasive option ", because in this case the personal and vehicle inspection is limited to a superficial review.

After discussing the content of article 148 the Ministers unanimously declared the Constitutionality of the detention of those "caught in the act" of committing crimes that require action or intervention, ie, warrantless stops and searches.

According to Laynez Potisek, the arguments of the CNDH were unfounded, since the Constitution does not distinguish between the crimes that are "already covered under the exception of the arrest of flagrant stops. "

"In addition, when the commission of a crime occurs , the person who discovers the offender in flagrant violation, that is not in the right moment, although he or she may be  a trained police officer, to determine the  exact  classification of the crimes and / or  know if the criminal acts occurring  require a search warrant or requisition of such ", he said.

It will be tomorrow when the full court continues the analysis of article 242 of the Code of Criminal Procedures to consider whether or not the securing of assets or rights over financial operations without judicial authorization is  unconstitutional.

NOTE: As of Friday, March 16, 2018 I have found no news update on whether or not the last issues were resolved today. Probable Update soon.