The fourth amendment protects Americans from unreasonable searches by police – “The right of the people to be secure in their persons, houses, papers and affect against unreasonable searches and seizures shall not be violated…but upon probable cause…” (www.law.cornell.edu).
“How can they search me when I’m not doing anything wrong?”
“If they pat me down and feel a knife in my pocket, can I get in trouble?”
“Can I get in trouble for having a gun in my car if they pull me over for speeding?”
“Can police stop me for looking suspicious?”
“What if the police find something illegal during a search unrelated to why they stopped me?”
The how and why of citizens being stopped and searched by police are critical components to our freedoms and rights as American citizens. While the police have a duty to keep the public safe, they also have a duty to perform that task in a way that doesn’t violate the rights of the individual/s in question.
There are several legal ways law enforcement can perform a search of citizen. If a police officer is in a place and time where they are supposed to be and they observe suspicious activity that may endanger the public’s safety or their own, they can pursue a search. What constitutes “suspicious” can be a debatable aspect of the search. However, if they have reason to believe a crime is being, has been, or will be committed they may use one of the following courses of action to obtain a search of a person or their belongings.
A search warrant must be signed by a judge for police to search for a specific thing. To obtain that warrant, they must demonstrate to the judge that there is probable cause that a crime has been, is being, or will be committed. The scope of the search is limited to the specific area, place, or object listed in the warrant.
When a police officer obtains verbal consent from a citizen, a warrant is not necessary to search their belongings. When law enforcement asks you if you “mind if they take a look around,” whether that is your home, your car, purse, or pockets, if you say “yes,” you are giving them consent. Anything found during that search will be admissible as evidence in court. However, whether or not someone actually gave consent, is an arguable defense in court.
If a law enforcement officer sees something that any reasonable officer would perceive as illegal in plain view from where they’re allowed to be, they have the ability to conduct a search and seize items such as illegal drug paraphernalia. This also applies during an arrest. For example, when police arrest someone, they may have the right to search you or your vicinity for weapons.
Under the emergency exception, police can conduct a search without a warrant in the interest of public safety. This exception to the fourth amendment can often be taken advantage of because the perception that immediate action is needed to protect life or property can vary from person to person. A qualified criminal defense attorney can help establish whether or not items used against you in court were truly seized under the emergency doctrine.
Stop and Frisk
The terms Terry stop, Terry pat down or Terry stop and frisk are associated with the Supreme Court case, Terry v. Ohio in 1968. Police may have the right to stop and question someone when suspicion arises that they may be involved in criminal activity. Due to the results of this case, it’s important to note the difference between stop and frisk versus stop and arrest. If police reasonably suspect the subject is armed and dangerous, they may conduct a pat-down on the outside of the clothing. The stop and frisk must be non-intrusive. That means they cannot reach into clothing or manipulate objects in one’s pockets from the outside. Only if the stop and frisk gives rise to probable cause, can an arrest follow. A reasonable stop and frisk is one in which a reasonably prudent officer believes that his safety or the safety of others is endangered and it cannot be unreasonably prolonged. For example, if the Terry pat down reveals nothing illegal, the officer cannot then call for and use a dog to perform a sniff search. Such continuance of a search would go beyond the time reasonably required for a brief traffic stop. An example of this can be found in the case, Rodrigues v United States, 2015 (www.supremecourt.gov 2015), when illegal drugs were found only after a drug dog was used on Rodrigues’ vehicle when the stop and question yielded nothing illegal.
The bottom line is that whenever you are searched, anything discovered will be used against you. Items found may affect your case in ways you may not consider. Not only will they result in additional charges, but they may also be used to attack your character or portray you as “criminal-minded,” which can affect juror perceptions, plea deals, sentencing, and probation terms. If you are a public figure, even if all charges are dismissed, the publicity about your mere possession of the item/s may cost your reputation, job, or professional license. It is imperative that you assert your fourth amendment rights and consult with a criminal defense attorney prior to consenting to any search. Here is a short video that may help your understanding of when the police can and cannot search you. https://vimeo.com/532065503