Due Process in a Search of Electronic System by Patrol Officer

Abstract

The criminal justice system has stipulated the legal framework for a fair and justifiable search. A search is justifiable when there is a subpoena, or strong suspicion of crime by the police. However, the coercion and arbitrary act of a law enforcement officer are still in practice, for instance like the case portrayed in East Jakarta. Although the case did not represent entirely the behaviour of all of the law enforcement, the standard of fair search must be enforced. This article discusses the legal procedures of a justifiable search of electronic systems suspected to be a tool of a crime and determines whether this search would violate a right to privacy. It provides academic discussion and evaluation of criminal law procedure in practice. The main discussion is conducted using doctrinal research, scrutinizing the provisions within Electronic Information and Transaction Law (EITL), Criminal Law Procedure Law (CLPL), and Personal Data Protection Law (PDPL) to determine the parameters of justifiable search of an electronic system conforming to the due process of law. The research finds that not every patrol officer has the justified measures to do a search on an alleged person, unless there is enough probable cause to do so as stipulated in the CLPL. The searches of a civilian cell phone which is not in accordance with CLPL, EITL, and PDPL should be considered as illegal and the officer who conducts them should be held accountable for it.